Civil Procedure:

A View From the Bench

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Civil Procedure:

A View From the Bench

Prepared by: Hon. Don S. Cohn, Dade County Courthouse Hon. Andrew S. Hague, Dade County Courthouse Hon. Bronwyn C. Miller, South Dade Justice Center Hon. Lisa S. Walsh, Dade County Courthouse

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Table of Contents Civil Procedure: a View From the Bench Selected Issues Regarding Florida’s Process and Service of Process Laws......................... 3 Selected Issues Regarding Florida’s Rules of Civil Procedure Relating to Discovery....................................................................................................................................23 Jury and Nonjury Trial..................................................................................................................45 Jury and Nonjury Trial............................................................................................................................................... 45 Voir Dire............................................................................................................................................................................. 47 Opening Statement and Closing Argument............................................................................................. 51 Cross-examination..................................................................................................................................................... 52 Juror Questioning of Witnesses......................................................................................................................... 53 Directed Verdict and Jnov................................................................................................................................... 55 Post-verdict Juror Interview and Ethical Considerations................................................................... 57 Appeal................................................................................................................................................................................ 58 Rules of Evidence..........................................................................................................................61 I Hear Say It’s Hearsay – or Not?......................................................................................................................... 61 I Notice It’s Judicial – or Is It?................................................................................................................................ 82

SELECTED ISSUES REGARDING

FLORIDA’S PROCESS AND SERVICE OF PROCESS LAWS

Hon. Andrew S. Hague Hon. Bronwyn C. Miller Eleventh Judicial Circuit Miami-Dade County

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CHAPTER 48 PROCESS AND SERVICE OF PROCESS Purpose: “The purpose of process and its service is to notify the defending party that he is being sued, tell him the nature of the litigation, give him an opportunity to defend, and confer jurisdiction on the court over the defendant’s person.” Henry P. Trawick, Florida Practice & Procedure, Sec. 8:2 (2007), citing, State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So.145 (1940). The major purpose of the constitutional provision which guarantees “due process” is to make certain that when a person is sued he/she has notice of the suit and an opportunity to defend. Haney v. Olin Corp, 245 So. 2d 671 (Fla. 4th DCA 1971). There must be strict compliance with the statutes governing service of process. American Liberty Ins. Co. v. Maddox, 238 So. 2d 154 (Fla. 2d DCA 1970). Generally: Fla. R. Civ. P. 1.070 governs process, generally. Initial process shall be served within 120 days of filing of the initial pleading. If not, the court may set a time for service or dismiss the action. A dismissal must be without prejudice. Upon a showing of good cause, the court shall set a specified time for service. A motion for leave to amend with an attached amended complaint serves to reset the 120 day time period. Thomas v. Silvers, 748 So. 2d 263 (Fla. 1999). Waiver of Service of Process: Service of process may be waived. Waiver is effectuated by serving pleadings, papers or motions not directed at a defect in service; authorizing counsel to accept pleadings; or agreeing to accept service via mail. Anthony v. Gary J. Rotella & Assocs. P.A., 906 So. 2d 1205, (Fla. 4th DCA 2005). Pleading to the merits without objecting to service of process or lack of personal jurisdiction waives those defenses. Berne v. Beznos, 819 So. 2d 235, 238 (Fla. 3d DCA 2002). The failure to raise insufficient service of process defense at the inception of a case, in either a motion or responsive pleading, constitutes a waiver of that defense. Parra v. Raskin, 647 So.2d 1010, 1011 (Fla. 3d DCA 1995). Entering a general appearance following default without raising sufficiency of service of process or lack of personal jurisdiction constitutes a waiver. Caldwell v. Caldwell, 921 So. 2d 759, 760 (Fla.1st DCA 2006). Active participation in a proceeding waives issues regarding service of process defense and constitutes submission to a court's jurisdiction. Solmo v. Friedman, 909 So.2d 560, 564 (Fla. 4th DCA 2005).

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Summary of Florida Statutes Relating to Service of Process: 48.011 Process; how directed. All process except subpoenas shall be directed to “To Each Sheriff of the State.” This is due to the fact that process is considered to be “throughout the state.” See forms 1.902-1.906 and 1.909. 48.021 Process; by whom served. Must be served by sheriff in the county where person to be served is found except initial civil process may be served by a certified process server or a special process server appointed by the sheriff. Witness subpoenas may be served by any authorized person. Service is invalid if process server is not certified in the county where service is effectuated. Cheshire v. Birenbaum, 688 So. 2d 430 (Fla. 3rd DCA 1997). Judgments rendered after defective or invalid service are voidable rather that void. Decker v. Kaplus, 763 So. 2d 1229 (Fla. 5th DCA 2000). In Decker, the defendant was served by a process server who was not qualified to effect service in the district where the defendant resided. A default judgment was entered against the defendant and the defendant did not appear in court to move to set aside the judgment due to the invalid service for two and a half years. The court held that the service conveyed actual notice but that the service would have been voidable had the defendant challenged the service timely or within a year. However, since the defendant had waited two and one half years, the judgment was no longer voidable. 48.031 Service of process generally; service of witness subpoenas. (1) (a) Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section. (b) Employers, when contacted by an individual authorized to make service of process, shall permit the authorized individual to make service on employees in a private area designated by the employer. (2) (a) Substitute service may be made on the spouse of the person to be served at any place in the county, if the cause of action is not an adversary proceeding between the spouse and the person to be served, if the spouse requests such service, and if the spouse and person to be served are residing together in the same dwelling. (b) Substitute service may be made on an individual doing business as a sole proprietorship at his or her place of business, during regular business hours, by

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serving the person in charge of the business at the time of service if two or more attempts to serve the owner have been made at the place of business. (3) (a) the service of process of witness subpoenas, whether in criminal cases or civil actions, shall be made as provided in subsection (1). However, service of a subpoena on a witness in a criminal traffic case, a misdemeanor case, or a second degree or third degree felony may be made by United States mail directed to the witness at the last known address, and the service must be mailed at least 7 days prior to the date of the witness's required appearance. Failure of a witness to appear in response to a subpoena served by United States mail that is not certified may not be grounds for finding the witness in contempt of court. (b) A criminal witness subpoena may be posted by a person authorized to serve process at the witness's residence if three attempts to serve the subpoena, made at different times of the day or night on different dates, have failed. The subpoena must be posted at least 5 days prior to the date of the witness's required appearance. (4) (a) Service of a criminal witness subpoena upon a law enforcement officer or upon any federal, state, or municipal employee called to testify in an official capacity in a criminal case may be made as provided in subsection (1) or by delivery to a designated supervisory or administrative employee at the witness's place of employment if the agency head or highest ranking official at the witness's place of employment has designated such employee to accept such service. However, no such designated employee is required to accept service: 1. For a witness who is no longer employed by the agency at that place of employment; 2. If the witness is not scheduled to work prior to the date the witness is required to appear; or 3. If the appearance date is less than 5 days from the date of service. The agency head or highest ranking official at the witness's place of employment may determine the days of the week and the hours that service may be made at the witness's place of employment. (b) Service may also be made in accordance with subsection (3) provided that the person who requests the issuance of the criminal witness subpoena shall be responsible for mailing the subpoena in accordance with that subsection and for making the proper return of service to the court. (5) A person serving process shall place, on the copy served, the date and time of service and his or her identification number and initials for all service of process. (6) If the only address for a person to be served, which is discoverable through

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public records, is a private mailbox, substitute service may be made by leaving a copy of the process with the person in charge of the private mailbox, but only if the process server determines that the person to be served maintains a mailbox at that location. Different Methods of Service: Personal service: Individual service is self-explanatory; if the body is served within the borders of the State of Florida, there is valid service. Campo v. Tafur, 704 So. 2d 730 (Fla. 4th DCA 1998). (Woman served ex-spouse who had entered the state for the sole purpose of visiting his son). Delivery doesn’t require that copy summons and complaint be placed in the hands of the defendant, nor for that manner, that the defendant be ever physically touched with the suit papers. Haney v. Olin Corp, 245 So. 2d 671 (Fla. 4th DCA 1971). F.S. 48.194 allows for the extraterritorial service by officers in other states. Electro Engineering Products Co., Inc. v. Lewis, 352 So. 2d 862 (Fla. 1977). § 48.194. Personal service outside state. (1) Except as otherwise provided herein, service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. No order of court is required. An affidavit of the officer shall be filed, stating the time, manner, and place of service. The court may consider the affidavit, or any other competent evidence, in determining whether service has been properly made. Service of process on persons outside the United States may be required to conform to the provisions of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. (2) Where in rem or quasi in rem relief is sought in a foreclosure proceeding as defined by s. 702.09, service of process on a person outside of this state where the address of the person to be served is known may be made by registered mail as follows: (a) The party's attorney or the party, if the party is not represented by an attorney, shall place a copy of the original process and the complaint, petition, or other initial pleading or paper and, if applicable, the order to show cause issued pursuant to s. 702.10 in a sealed envelope with adequate postage addressed to the person to be served. (b) The envelope shall be placed in the mail as registered mail. (c) Service under this subsection shall be considered obtained upon the signing of the return receipt by the person allowed to be served by law.

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(3) If the registered mail which is sent as provided for in subsection (2) is returned with an endorsement or stamp showing "refused," the party's attorney or the party, if the party is not represented by an attorney, may serve original process by first-class mail. The failure to claim registered mail is not refusal of service within the meaning of this subsection. Service of process pursuant to this subsection shall be perfected as follows: (a) The party's attorney or the party, if the party is not represented by an attorney, shall place a copy of the original process and the complaint, petition, or other initial pleading or paper and, if applicable, the order to show cause issued pursuant to s. 702.10 in a sealed envelope with adequate postage addressed to the person to be served. (b) The envelope shall be mailed by first-class mail with the return address of the party's attorney or the party, if the party is not represented by an attorney, on the envelope. (c) Service under this subsection shall be considered obtained upon the mailing of the envelope. (4) If service of process is obtained under subsection (2), the party's attorney or the party, if the party is not represented by an attorney, shall file an affidavit setting forth the return of service. The affidavit shall state the nature of the process; the date on which the process was mailed by registered mail; the name and address on the envelope containing the process; the fact that the process was mailed registered mail return receipt requested; who signed the return receipt, if known, and the basis for that knowledge; and the relationship between the person who signed the receipt and the person to be served, if known, and the basis for that knowledge. The return receipt from the registered mail shall be attached to the affidavit. If service of process is perfected under subsection (3), the party's attorney or the party, if the party is not represented by an attorney, shall file an affidavit setting forth the return of service. The affidavit shall state the nature of the process; the date on which the process was mailed by registered mail; the name and address on the envelope containing the process that was mailed by registered mail; the fact that the process was mailed registered mail and was returned with the endorsement or stamp "refused"; the date, if known, the process was "refused"; the date on which the process was mailed by first-class mail; the name and address on the envelope containing the process that was mailed by first-class mail; and the fact that the process was mailed by first-class mail with a return address of the party or the party's attorney on the envelope. The return envelope from the attempt to mail process by registered mail and the return envelope, if any, from the attempt to mail the envelope by first-class mail shall be attached to the affidavit. Substitute Service: Statutes that allow for substitute service are an exception to the rule requiring personal service, and it is well-settled that such statutes must be strictly construed in order to protect a defendant’s due process rights. Clauro Enterprises, Inc., and Ricardo

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Rupcich v. Aragon Galiano Holdings, LLC, -- So. 3d ---, 34 FLW D 1810 (Fla. 3d DCA 2009); see also Alvarado v. Cisneros, 919 So.2d 585 (Fla. 3d DCA 2006); Torres v. Arnco Construction, Inc., 867 So. 2d 583, (Fla. 5th DCA 2004); Fed. Nat’l Mortgage Ass’n v. Fandino, 751 So.2d 752, (Fla. 3d DCA 2000); and Hauser v. Schiff, 341 So. 2d 531 (Fla. 3d DCA 1977). Substitute service requires that process be served at the defendant’s regular place of abode with a person residing within who is at least 15 years of age (note: substitute service on a spouse is permitted as long as the cause of action is not an adversary proceeding between the spouses). The requirement that substituted service of process be at defendant’s “usual place of abode” means the place where the defendant is actually living at the time. Thompson v. State Dept. of Revenue, 867 So. 2d 603 (Fla. 1st DCA 2004). A mere residence is not enough; the abode must be where the defendant is actually living. Serving process on the roommate as he walks through the parking lot is not sufficient service. The court rejected substantial compliance in determining whether or not there has been due process. Ward v. Gibson, 349 So. 2d 173 (Fla. 3d DCA 1976). The definition of a “co-resident” has also been the subject of litigation. Logically, the theory is that service is only valid if process is given to a trustworthy individual who verifies that it gets to the defendant and that would not include a transient guest or other person that is only there for a short period of time that may inadvertently forget to give the paperwork to the defendant. . Therefore, service to a visitor is ineffective service. Gamboa v. Jones, 455 So. 2d 613 (Fla. 3d DCA 1984); However, a defendant’s motherin-law who was residing in the defendant’s home, recuperating from a broken leg for six weeks, was considered to be a “co-resident” for the purposes of accepting service. There the court seemed to recognize the fact that there was no evidence that the mother-in-law was not informed of the contents of the paperwork. Magazine v. Bedoya, 475 So. 2d 1035 (Fla. 3d DCA 1985). Servant employed by an individual living in servant quarters is not a person of the family so that attempted service on the butler and caretaker was ineffective service. Wakeman v. Farish, 356 So. 2d 1323 (Fla. 4th DCA 1978). Where defendant resided alone with a servant and without any member of her family in the household, service of process could have been effected only by a delivery to her in person. McIntosh v Wibbeler, 106 So. 2d 195 (Fla. 1958). A business is not a place of abode. State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So.145 (Fla. 1940). When the defendant lives behind a locked door, or in a secure area, the individual there to serve the papers can call on the phone and if the resident identifies himself but refuses to open the door, the individual can tell him /her what they are there for and

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where the papers will be left. Luckey v. Smathers & Thompson, 343 So. 2d Fla. 53 (Fla. 3d DCA 1977); Dowd Shipping, Inc. v. Lee, 354 So. 2d 1252, (Fla. 4th DCA 1978). Service by mail, certified return receipt requested was adequate to serve defendant borrowers in action by lender where borrowers had agreed in the loan documents to submit to jurisdiction of the court in that manner, and the court thus had jurisdiction to enter default judgment against borrower, particularly where lenders attempts to personally serve borrowers had failed. Barker v. Greeenstreet Financial, 823 So. 2d 195 (Fla. 3d DCA 2002). Substitute service: on an agent: It has been long held that service on an agent is not valid service for the purposes of process. In Sawyer v. Gustason, 118 So. 2d 57 (Fla. 1928), an absentee land owner almost lost his land when locals tried to quiet title on acreage that he had fenced in and cultivated. Gustason had an agent for the property who did not reside on the land and the court specifically states that even service of property on that agent would not have conferred jurisdiction upon Gustason under the laws of the State of Florida. Acceptance of service: Acceptance of service is as effective as service of process upon the individual. McCord v. Smith, 43 So.2d 704 (Fla.1950). Sole proprietor at place of business (two prior attempts: F.S. §48.031(2)(b) states: Substitute service may be made on an individual doing business as a sole proprietorship at his or her place of business, during regular business hours, by serving the person in charge of the business at the time of service if two or more attempts to serve the owner have been made at the place of business. After two unsuccessful attempts to serve the serve the sole proprietor at his business, it is clear that the person in charge can then be served during regular business hours. Myrick v. Walters, App. 2 Dist., 666 So.2d 249 (1996). Private mailbox (must verify person maintains a mailbox) F.S. 48.031(6): Plaintiff must meet a two prong test in order to establish the threshold: 1) the private mailbox is the only discoverable address for the defendant; 2) the process server determines that the person to be served maintains a mailbox at that particular location. See, Beckley v. Best Restorations, 13 So. 3d 125 (Fla. 4th DCA 2009);; Kramer v. MRT, LLC, No.007-80931-CIV, 2008WL 877211, at *1 (S.D. Fla, Apr. 1, 2008). An affidavit which alleges that the service of process statute has been complied with is insufficient. York Commc’ns, Inc v. Furst Group, Inc 724 So. 2d 678, 679 (Fla. 4th DCA 1999). There must be sufficient evidence that all prongs have been met, i.e. that the mailbox is the only discoverable address and that it belongs to the defendant. Clauro Enterprises,

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Inc., and Ricardo Rupcich, v. Aragon Galiano Holdings, LLC, --So. 3d ---, 34 Fla. L. Weekly D1810 (Fla.3d DCA 2009) 48.041 Service on minor. Minors who marry are treated as adults under F.S. §48.031(1) which so specifies. Unmarried minor may be served by serving the parent or guardian, or serving an appointed legal guardian. Under F.S. §48.041(1), service on a minor is accomplished only by reading the process to the minor and the person in whose custody the minor is and by further serving said process on the guardian ad litem or other person if one was appointed by the courtto represent the minor. Community Federal Sav. & Loan Ass’n v. Wright, 452 So. 2d 648 (Fla. 4th DCA 1984). 48.042 Service on incompetent. (a) By serving two copies of the process to the person who has care or custody of the incompetent or, when there is a legal guardian appointed for the incompetent, by serving the guardian as provided in F.S. § 48.031. (b) By serving the guardian ad litem or other person, if one is appointed by the court to represent the incompetent. Service on the guardian ad litem is unnecessary when he or she appears voluntarily or when the court orders the appearance without service of process on him or her. (2) In all cases heretofore adjudicated in which process was served on an incompetent as prescribed by any law heretofore existing, the service was lawfully made, and no proceeding shall be declared irregular or illegal if a guardian ad litem appeared for the incompetent. Wife was found to be the guardian and not just another party. Sheriff had gone out of his way to comply with both prongs of he statute then in effect by delivering the process to both parties and reading the contents aloud to each party. Brown v. Mitchell, 151 So. 2d 305 (Fla. 1963). 48.051 Service on state prisoners. “Usual place of abode “ for service of process is a foreclosure action was prison, not the house where he formerly resided with his wife, when the inmate was actually in prison at the time of service. Shurman v. Atlantic Mortgage Inv. Corp., 795 So. 2d 952 (Fla. 2001). Serve the prisoner individually.

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Service on an inmate may not be made on warden’s secretary; it must be made on the actual inmate. Carter v.Lil’ Joe Records Inc., 829 So.2d 953 (Fla. 4th DCA 2002). Service of process on a songwriter while in the Ohio Correctional Facility is proper service because that was the person’s usual place of abode at the time the process was served. Carter v.Lil’ Joe Records Inc., 829 So.2d 953 (Fla. 4th DCA 2002). If the requirement to serve at “the usual place of abode” did not include prisons, the legislation would have specified an exception for inmates, which they failed to do. Shurman v. Atlantic Mortgage Inv. Corp., 795 So. 2d 952 (Fla. 2001). 48.061 Service on partnerships and limited partnerships. Service on any partner. If a partner is not available during business hours, he or she may designate an employee to accept service. If an attempt to serve partner and employee fails, service may be made on the person in charge of the partnership during normal business hours. Service on an individual partner allows execution against that individual’s assets. Service on the employee or person in charge allows execution against the partnership’s assets only. In simple terms, this merely means that a partnership can be served in one of several ways. The first way is when each member of the partnership is personally served. The result is that each member is then individually bound by any judgment as well as the partnership assets. The second would be when one or more, but not all, of the partners are personally served. In that scenario, any judgment binds only those served and all the partnership assets. Epstein & Bro. v. First Nat’l Bank, 110 So. 354 (Fla. 1926); Benito Adv., Inc. v. Brown, 517 So. 2d 775 (Fla. 2d DCA 1988). Third, a partner can designate an employee to accept service for the partnership when there isn’t a partner available during regular business hours and the office must be kept open between 10:00 am and 12:00 noon, except Saturdays and Sundays, for the purposes of service. F.S. §48.091; Radiation, Inc. v. Magnetic Systems Corporations, 173 So. 2d 741 (Fla. 2d DCA 1965) app. Dis, 180 So. 2d 214. The agent cannot just quit his duties; there is a certain procedure that he or she must follow in order to get out from under those duties. Rever v. Lapidus, 151 So.2d 61 Fla. 3d DCA 1963). The same is true for a corporate officer. Cortez Development Co. v. New York Capital Group, Inc., 401 So. 2d 1163 (Fla. 3d DCA 1981). Where a vice president was served and claimed that he was no longer an officer, the court found that there was no evidence that he had ceased being vice president and found the service to be valid. If there is an attempt to serve the partner or his designee and it fails, the partnership may be served by serving the person in charge of the partnership during normal business hours. This will secure service over the assets of the partnership, but not over the individual partners. Fidelity & Cas. Co. of N.Y. v. Homan, 116 So.2d 444 (Fla. 2d DCA 1959); The person “in charge” of the business is an individual that has the duties

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of general supervision over the general operation of the business. Rorick v. Stilwel, 133 So. 609 (Fla. 1933). Service of process on limited partnerships may be achieved by serving any general partner or by service on the registered agent. If this is done, then the partnership assets as well as those of any general partner that are served would be subject to any judgment. If the general partner cannot be located in the State of Florida and either there hasn’t been an agent appointed by the limited partnership or the agent cannot be located, the Secretary of State of the State of Florida can be served as if the limited partnership were a non-resident or as though it were the person in charge of the business as in the case of a partnership. F.S.§§ 48.061(2) and (3); 48.071; 48.181; and 620.105; Chase Lincoln First Bank, NA v. Borinquen, 494 So. 2d 295 (Fla. 3d DCA 1986); Cortez Development Company v. New York Capital Group, Inc., 401 So. 2d 1163 (Fla. 3d DCA 1981); Baker v. Petway, 749 So. 2d 1235 (Fla. 1st DCA 1999). Service on non-resident limited partnership can be achieved by serving any general partner in the state or any agent for service specified in the partnership’s application to do business in the State of Florida. If they cannot be located, then service of process can be perfected on the person in charge of the partnership’s business in the State of Florida. F.S. §§ 48.061(5) and 48.071. International Shoe Co. v. State of Washington etc, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945); Cooper v. Gibson, 208 So. 2d 117 (Fla. 4th DCA 1968). As you would expect, service in this manner bids the assets of the assets and not the general partners. Bay City Management, Inc. v. Henderson, 531 So. 2d 1013 (Fla. 1st DCA 1988). 48.071 Service on agents of nonresidents doing business in the state. If a person or partnership engages in business in Florida (without Florida being its principal place of business and presuming individual is a non-resident), process may be served on the person in charge of the business. Process shall be sent via registered or certified mail, return receipt requested. An affidavit of compliance shall be filed. In personam jurisdiction may be obtained the non-residents doing business in the State of Florida if they either appoint an agent to receive service of process locally or they voluntarily submit to the jurisdiction of the court. Cooper v. Gibson, 208 So. 2d 117 (Fla. 4th DCA 1968). It is necessary to not only serve the person in charge of the business here in the State of Florida once you determine that the company has a non-resident ownership, but then service must be mailed to the non-resident partnership return receipt requested and an affidavit to that effect must be submitted to the court. Meiselman v. McKnight, 226 So. 2d 437 (Fla. 2d DCA 1969). 48.081 Service on corporation.

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In accordance with 48.081, there are three ways to serve private corporations (insurance companies are specifically excluded from this particular statute). In this order: president or vice president; cashier, treasurer, secretary, or general manager; any director; any officer or business agent residing in the state. Alternatively, service may be made on the designated corporate agent 1) The President or vice president or other head of the corporation; 2) The cashier, treasurer; secretary; or general manager; 3) Any director; 4) Any officer or business agent residing in Florida. The first mode of service is by serving designated corporate officers or agents and to do that you have to start at the top. The reason being that you cannot serve anyone in the next category down until you have proof that that everyone from the highest category were absent from the county. Saridis v. Vista St. Lucie Ass'n, Inc. 804 So.2d 372 (Fla. 4th DCA 2001). If an officer has severed his ties to the corporation at the time the process is served, the service is ineffective. Sunrise Beach, Inc, v. Phillips, 181 So.2d 169 (Fla. 2d DCA1965). Service on foreign insurance company should be made on president, vicepresident or cashier if none of those can be located. Monarch Fire Ins. Co. v. Florida Asphalt Paving Co., 116 Fla.14, 156 So. 388 (Fla. 1934). Service can be made on the registered agent of a corporation pursuant to F.S. §48.08(3)(a). If however, the company fails to designate an agent under F.S. §48.091 then service can be made on any employee at the corporate business or any employee at the business of the registered agent. Richardson v. Albury, 505 So.2d 521 (Fla. 2d DCA 1987); Ludwig v. Schweigel, 701 So. 2d 1256 Fla. 5th DCA 1997). 48.091 Corporations; designation of registered agent and registered office. Florida corporations and foreign corporations must designate a registered agent and registered office. The office must be open from 10 a.m. to noon each day except weekends and legal holidays. A REGISTERED AGENT MUST BE PRESENT to accept service and a sign must identify the recipient of service. In order to avoid any impediments to the legal system since corporations are here today and gone tomorrow, the state has an interest in knowing where they are and who to serve at any given time. Therefore, it is necessary that a corporation that wants to do business in the State of Florida designate a registered agent and registered office that will

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be available from 10:00 am to 12:00 noon Monday through Friday. This will be a place where service of process can be accepted on behalf of the business during those periods without fail. State v. Tedder, 103 Fla. 1083, 138 So. 2d 643 (1932), cert denied 285 U.S. 557, 53 52 S. Ct. 458, 76 L. Ed. 946 (1932). The result of this method of service of process is in personam jurisdiction over the corporation. Junction Bit & Tool Co. v. Institutional Mortgage Co., 249 So. 2d 879 (Fla. 2d DCA 1970). National Banks are exempt from the requirement of having registered agents and so they must be served by one of the alternate methods of corporate service. Under F.S. §655.0201, banks may appoint registered agents for the purposes of accepting service, however, if they do not or if the registered agent is not available after exercising reasonable diligence, then any executive officer of the financial institution can be served at its principal place of business in this state. If that fails, service of process may be made to any officer, director or business agent of the financial institution at its principal place of business or at any branch in this state. Lastly, there is an odd catch all which says that the first two methods are not necessarily the only methods to serve a financial institution and that there are others but it does not elaborate on what they are. F.S. § 655.0201. 48.101 Service on dissolved corporations. Prior to 1990, service of process against the directors of any corporation which was dissolved prior to July 1, 1990, as trustees of the corporation shall be served on one or more of the of the directors of the dissolved corporation as trustees thereof and binds all of the directors of the dissolved corporation as trustees thereof. Gould v. Brick, 358 F.2d 437 (1966). After that date, the new statutory construction took into consideration that dissolved corporations continue their corporate existence except they can’t conduct new business, only business related to their dissolution. They can, however, sue and be sued which is an important reason to continue having registered agents and that the mechanism in order to obtain service of process should be the same as any other corporation under F.S. §48.081. Liszka v. Silverado Steak & Seafood Co., 703 So.2d 1226 Fla. 5th DCA 1998). 48.111 Service on public agencies and officers. In this order: president, mayor, chair, or other head thereof; vice president, vice mayor, or vice chair; any member of the governing board, council, or commission. (1) Process against any municipal corporation, agency, board, or commission, department, or subdivision of the state or any county which has a governing board, council, or commission or which is a body corporate shall be served: (a) On the president, mayor, chair, or other head thereof; and in his or her absence; (b) On the vice president, vice mayor, or vice chair, or in the absence of all of the above; (c) On any member of the governing board, council, or commission.

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This is similar to service on corporations because there is a strict hierarchy that must be followed. One must begin at the top and if no one from line one can be located in the county, move to line two and so on. It is up to the plaintiff to make sure that service is perfected properly. 48.121 Service on the state. Process which is to be served against the State is served on the State Attorney, or one of their Assistants in, and for, the judicial circuit where the cause of action is being brought and two copies of the process and initial pleading are mailed by registered or certified mail to the attorney general except under the tort claims act. The Tort Claims Act is covered under F.S. §768.28 and it requires that process be served upon the head of the agency concerned and also, except as to a municipality or the Florida Space Authority, upon the Department of Financial Services. Metropolitan Dade County v. Lopez, 889 So. 2d 146 (Fla. 3d DCA 2004) is a case with a very convoluted history, but stands for this analysis: the court ultimately affirmed judgment notwithstanding the verdict on the grounds that the original plaintiff had failed to comply with the requirements of the statute that mandated that he serve the Department of Financial Services. 48.141 Service on labor unions. Process against labor organizations shall be served on the president or other officer, business agent, manager or person in charge of the business of such labor organization. International Typographical Union v. Ormerod, 59 So. 2d 534 (Fla.1952). 48.151 Service on statutory agents for certain persons. When any law designates a public officer, board, agency, or commission as the agent for service of process on any person, firm, or corporation, service of process thereunder shall be made by leaving two copies of the process with the public officer, board, agency, or commission or in the office thereof, or by mailing said copies to the public officer, board, agency, or commission. The public officer, board, agency, or commission so served shall file one copy in his or her or its records and promptly send the other copy, by registered or certified mail, to the person to be served as shown by his or her or its records. Proof of service on the public officer, board, agency, or commission shall be by a notice accepting the process which shall be issued by the public officer, board, agency, or commission promptly after service and filed in the court issuing the process. The notice accepting service shall state the date upon which the copy of the process was mailed by the public officer, board, agency, or commission to the person being served and the time for pleading prescribed by the rules of procedure shall run from this date. The service is valid service for all purposes on the person for whom the public officer, board, agency, or commission is statutory agent for service of process. F.S.§48.151.

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48.161 Method of substituted service on nonresident. Plaintiff must allege two basic premises that allow for substituted service under this statute. 1) That the cause of action is has sufficient ties to the State of Florida and comes under the purview of the statute, and; 2) that they are now a non-resident, but they were residents when the wrong occurred. What is determined to be a business that has sufficient ties to the state of Florida so as to bring it under F.S. §48.161 seems to be a case by case decision. Lake Erie Chenical Co. v. Stinson, 162 So. 2d 545 (Fla. 2d DCA 1964); State ex rel. Weber v. Register, 67 So. 2d 619 (Fla. 1953). Substitute service on the non-resident defendant is achieved by serving a copy of the process and initial pleadings on the Secretary of State or by mailing them to his or her office certified mail. Thereafter, notice of the of the service, a copy of the process and the initial pleadings must be sent registered or certified mail to the defendant or must be served on him in the State of Florida, by a person authorized to serve process, or served upon him or her by a person authorized to do so wherever he or she is located, It is important to understand that notice must be sent certified mail even if the defendant received actual notice through regular mail or service will not be valid. Woodward v. Smith, 773 So 2d 1170 (Fla. 2d DCA 2000) and the plaintiff can mail the process to the Sec. of State the same day as the certified mail is sent to the defendant, they are not required to wait until they receive the return back from the Sec. of State. Boman Golf, Inc. v. Cosmos Industries, Inc., 325 F. Supp. 704 (S.D. Fla. 1971). The defendant’s return receipt along with the plaintiff’s affidavit of compliance with the procedures must be filed with the court. A private courier service cannot be used in lieu of certified mail. Federal National Mortgage Association v. Fandino, 751 So. 2d 752 (Fla. 3d DCA 2000). The plaintiff must make all diligent efforts to find the defendants correct address. Robinson v. Cornelius, 377 So.2d 776 (Fla. 4th DCA 1979). If the return receipt comes back marked “refused”, you then have an affirmative action on the part of the defendant to avoid service and it is no different than if he had slammed the door in the process server’s face after he identified himself and stated his purpose. Under Cherry v. Heffernan, 182 So. 427 (Fla. 1938), a refusal was held to be valid service. If the return receipt comes back as being “unclaimed” then there is a justiciable issue as to whether the defendant intentionally failed to claim the process in an attempt to avoid the legal system or the notice was misdirected due to a bad address. If the plaintiff can prove that the defendant somehow intentionally refused to go down to the post office to pick up the certified mail because he knew what it was, then perhaps you would have an argument. Lendsay v. Cotton, 123 So. 2d 745 (Fla. 3d DCA 1960). 48.171 Service on nonresident motor vehicle owners, etc.

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Use the language of the statute when asserting the facts that qualify for substituted service. Red Top Cab & Baggage Company v. Holt,16 So. 2d 649 (1944). Service means by an officer authorized to serve process and does not include mailing by the plaintiff or his attorney to the Sec. of State. Gallant v. McKinney,104 F. Supp. 277 (S.D. Fla. 1952). Plaintiff must reasonably employ knowledge at his command so that, if possible, defendant will have notice of the suit. Robinson v. Cornelius, 377 So. 2d 776 (Fla. 4th DCA 1979). 48.181 Service on nonresident engaging in business in state. In order to obtain jurisdiction under this section for substituted service upon the secretary of state over foreign corporation not qualified to do business in Florida, it must be shown that cause of action arose out of transaction or operation connected with, or incidental to, activities of foreign corporation in Florida. Crown Colony Club, Ltd. V. Honecker, 307 So. 2d 889 (Fla. 3d DCA 1974). Absent allegation that corporation president acting in his individual capacity had engaged in business in Florida, service of process upon secretary of state under long arm statute could not constitute service upon president as individual. Farouki v. Attel et Cie, 682 So. 2d 1185 (Fla. 4th DCA 1996). 48.183 Service of process in action for possession of premises. Service on a person 15 years of age or older or if unsuccessful after two attempts (six hours apart), posting is permitted. This is an alternative method of service if plaintiff is unable to locate the defendant, or any co-resident 15 years of age or older in the county at his usual place of abode, after two attempts at least 6 hours apart. It does not prohibit the service of process on a tenant as is otherwise provided on defendants in civil cases. 48.19 Service on nonresidents operating aircraft or watercraft in the state. Service on nonresidents operating aircraft or watercraft in the state fall in the same category as a nonresident car owners; individuals that are concealing their whereabouts and residents that were involved in an accident that is the subject of this lawsuit and have subsequently become nonresidents. These defendants conveniently agree to appoint the secretary of state to accept service on their behalf. The effect of serving the secretary of state is the same as personal service on the defendant. Jurisdiction requirements must be clearly alleged in the complaint. Corley v. Milliken, 389 So. 2d 976 (Fla. 1980).

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The statute providing for substituted service of process on nonresidents must be strictly construed and party seeking to effect service under statute has burden of presenting facts which clearly justify applicability of statute. Young Spring & Wire Corp. v. Smith, 176 So. 2d 903 (Fla. 1965); Leviten v. Gaunt, 360 So. 2d 112 (Fla. 3d DCA 1978). Lastly, it must be alleged that the cause of action being sued upon occurred in the State of Florida. Lake Erie Chemical Company v. Stinson, 162 So.2d 545 (Fla. 2d DCA 1964) cf. 181 So. 2d 587; Young Spring & Wire Corp. v. Smith, 176 So. 2d 903 (Fla. 1965); Elmex Corp. v. Atlantic Federal Sanings and Loan Association of Ft. Lauderdale, 325 So.2d 58 (Fla. 4th DCA 1976). 48.193 Acts subjecting person to jurisdiction of courts of state. 48.194 Personal service outside state. Service of process pursuant to Florida’s Long Arm Statute must be conducted in conformity with in-state service using a person authorized to serve process in the relevant jurisdiction. Out of state service must conform to the same requirements as in-state service in that process must be served to the defendant or co-resident at least 15 years of age and it must be served at the defendant’s usual place of abode. Mouzon v. Mouzon, 458 So. 2d 381 (Fla. 5th DCA 1981). Plaintiff does not have the choice of constructive service or personal service outside the state if both are available; they must make a diligent effort to serve the defendant personally because the goal is to put the defendant on notice of the suit. Bedford Computer Corp. v. Graphic Press, 484 So. 2d 1225 (Fla. 1986); Gross v. Fidelity Federal Savings Bank of Florida etc. et al, 579 So. 2d 846 (Fla. 4th DCA 1991). Not unlimited, applies to tortuous acts committed in the State of Florida and other acts enumerated under F.S. §48.193. 48.195 Service of foreign process. Service from states outside the State of Florida shall be served just as process from the State of Florida. 48.196 Service of process in connection with actions under the Florida International Arbitration Act. Allows for service of process pursuant to F.S. § 48.021 and F.S. §48.031 and so you follow the same rules concerning who and how you serve the defendant, either on the defendant personally or using substitute service at his usual place of abode to a coresident, 15 years of age or older. 48.20 Service of process on Sunday.

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Service or execution on Sunday of any writ, process, warrant, order, or judgment is void and the person serving or executing, or causing it to be served or executed, is liable to the party aggrieved for damages for so doing as if he or she had done it without any process, writ, warrant, order, or judgment. If affidavit is made by the person requesting service or execution that he or she has good reason to believe that any person liable to have any such writ, process, warrant, order, or judgment served on him or her intends to escape from this state under protection of Sunday, any officer furnished with an order authorizing service or execution by the trial court judge may serve or execute such writ, process, warrant, order, or judgment on Sunday, and it is as valid as if it had been done on any other day. Not allowed unless affidavit is made stating that there is good reason to believe that a person intends to escape from Florida under Sunday protection. Serving party may be liable for DAMAGES if service is conducted on Sunday. The summons in a criminal action was to be served in the same manner as one served in a civil action, and although a criminal warrant could have been executed on any day, service of a criminal summons was void under F.S.§48.20 if served on a Sunday, Miller v. Johnson, 466 So. 2d 340 (Fla. 5th DCA 1985). There are a few exceptions, collection for child support, and by court order based on an affidavit alleging that the defendant is about to flee the state and that there are exigent circumstances that make it imperative to get them served on a Sunday. The order can be authorized by any judicial officer. Summons is “process” within the meaning of the statute providing that civil process cannot be served on Sundays. Miller v. Johnson, 466 So. 2d 340 (Fla. 5th DCA 1985); Common law rule prohibiting judicial proceedings on Sunday from sunrise to sunset prevails in Florida; Harrison v. Bay Shore Development Co., 92 Fla. 875; 111 So. 128 (1926); Harden v. Harden, 125 So. 2d 124 (Fla. 3d DCA 1966). 48.21 Return of execution of process. Return of process is essential to an effectual service but it is the service of the writ the gives jurisdiction and the return is merely evidence that the defendant has been served. Klosenski v. Flaherty, 110 So. 2d 685 (Fla. 3d DCA 1959); Largay Enterprises Inc. v. Berman, 61 So. 2d 366 (1952); State ex rel. Briggs v. Barns, 121 Fla. 857, 164 So. 2d 539 (1935). A failure to state in the sheriff’s return as to the service of the writ, that the defendant foreign corporation was doing business in this State, or that its president on whom the service was attempted to be made resided in the state or that he was then in the state on the business of the corporation, is not ground for quashing the return. Putnam Lumbar Co. v. Ellis-Young Co., 50 Fla. 251, 39 So. 2d 193 (1905).

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SELECTED ISSUES REGARDING

FLORIDA’S RULES OF CIVIL PROCEDURE RELATING TO DISCOVERY

Hon. Andrew S. Hague Hon. Bronwyn C. Miller Eleventh Judicial Circuit Miami-Dade County

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RULES 1.280-1.390 DISCOVERY Scope: “The general test for the permissible scope of discovery is whether the information sought is not privileged and is relevant to the subject matter of the action . . . Under the relevance part of the test the information sought is not subject to objection if it appears reasonably calculated to lead to the discovery of admissible evidence even though inadmissible itself.” Henry P. Trawick, Florida Practice & Procedure, Sec. 16:3 (2007), citing, Fla. R. Civ. P. 1.280(b)(1). Rule 1.280

GENERAL PROVISIONS GOVERNING DISCOVERY

Text of Rule: (a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise and under subdivision (c) of this rule, the frequency of use of these methods is not limited, except as provided in rules 1.200, 1.340, and 1.370. (b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. (2) Indemnity Agreements. A party may obtain discovery of the existence and contents of any agreement under which any person may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or to reimburse a party for payments made to satisfy the judgment. Information concerning the agreement is not admissible in evidence at trial by reason of disclosure. (3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party's representative, including that

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party's attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Without the required showing a party may obtain a copy of a statement concerning the action or its subject matter previously made by that party. Upon request without the required showing a person not a party may obtain a copy of a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for an order to obtain a copy. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred as a result of making the motion. For purposes of this paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording or transcription of it that is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded. (4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows: (A)(i) By interrogatories a party may require any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial may be deposed in accordance with rule 1.390 without motion or order of court. (iii) A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial: 1. The scope of employment in the pending case and the compensation for such service. 2. The expert's general litigation experience, including the percentage of work performed for plaintiffs and defendants. 3. The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial. 4. An approximation of the portion of the expert's involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of

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earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services. An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and other provisions pursuant to subdivision (b)(4)(C) of this rule concerning fees and expenses as the court may deem appropriate. (B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in rule 1.360(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. (C) Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A) and (b)(4)(B) of this rule; and concerning discovery from an expert obtained under subdivision (b)(4)(A) of this rule the court may require, and concerning discovery obtained under subdivision (b)(4)(B) of this rule shall require, the party seeking discovery to pay the other party a fair part of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert. (D) As used in these rules an expert shall be an expert witness as defined in rule 1.390(a). (5) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. (c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order

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of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred in relation to the motion. (d) Sequence and Timing of Discovery. Except as provided in subdivision (b)(4) or unless the court upon motion for the convenience of parties and witnesses and in the interest of justice orders otherwise, methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not delay any other party's discovery. (e) Supplementing of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired. Author’s Notes Regarding Expert Discovery: 1996 Amendment. The amendments to subdivision (b)(4)(A) are derived from the Supreme Court's decision in Elkins v. Syken, 672 So. 2d 517 (Fla. 1996). They are intended to avoid annoyance, embarrassment, and undue expense while still permitting the adverse party to obtain relevant information regarding the potential bias or interest of the expert witness. 2000 Amendment. Allstate Insurance Co. v. Boecher, 733 So.2d 993, 999 (Fla. 1999), clarifies that subdivision (b)(4)(A)(iii) is not intended “to place a blanket bar on discovery from parties about information they have in their possession about an expert, including the party's financial relationship with the expert.” Relevance: Request for discovery should be reasonably calculated to lead to the discovery of admissible evidence. Fla. R. Civ. P. 1.280(b)(1); See also, Charles Sales Corp. v. Rovenger, 88 So. 2d 551 (Fla. 1956). However, relevance is not an objection for deposition. Fla. R. Civ. P. 1.310(d). Discretion of trial court in determining whether to permit discovery and admission of opposing counsel's fees is tempered by requirement that any information sought through discovery process must be relevant to subject matter of pending action. Anderson Columbia v. Brown, 902 So.2d 838 (Fla. 1st DCA 2005), rehearing denied, review denied 924 So.2d 806.

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Discovery concerning amount of attorney's fees should be deferred, under usual circumstances, until trial court has determined entitlement. In re Estate of Ransburg, 608 So.2d 49 (Fla. 2d DCA 1992). Trial court's order allowing church's 42nd discovery request, which concerned third person's financial support of wrongful death action, was a departure from the essential requirements of the law, because the information sought was not reasonably calculated to lead to discovery of admissible evidence in the trial of wrongful death action. Estate of McPherson ex rel. Liebreich v. Church of Scientology Flag Service Organization, Inc., 813 So.2d 1032 (Fla. 2d DCA 2002). Privilege: Privilege is determined by the Fla. Evidence Code and work-product privilege, as created by case law. See Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947). Order compelling tire company to produce current quality assurance manual for one of its manufacturing plants would be quashed so that trial court on remand could conduct in camera hearing and inspection of manual or, alternatively, hold evidentiary hearing to determine whether manual was trade secret, as tire company claimed. Uniroyal Goodrich Tire Co. v. Eddings, 673 So.2d 131 (Fla. 4th DCA 1996). Where trial court order did not reveal reasons for requiring discovery of insured's statement to representative of insurance company concerning accident, nor did trial judge make finding as to purpose of statements, remand was necessary for determination of whether statement was protected from discovery under work product privilege applicable to statements prepared by investigator or insurer where legal action is contemplated. Selected Risks Ins. Co. v. White, 447 So.2d 455 (Fla. 4th DCA 1984). Where trial judge who compelled production of contents of independent insurance investigator's file compiled during investigation of claim could not recall whether he inspected file, remand was necessary to determine if investigation was of preliminary kind that insurance companies conduct in ordinary course of business, or whether file was prepared in anticipation of litigation. Cotton States Mut. Ins. Co. v. Turtle Reef Associates, Inc., 444 So.2d 595 (Fla. 4th DCA 1984). Certiorari: Traditionally, discovery orders in actions at law are reviewable by certiorari under the proper circumstances, particularly where the work product of a party litigant is the subject matter of such discovery. Allstate Ins. Co. v. Gibbs, 340 So.2d 1202 (Fla. 4th DCA 1976), certiorari dismissed 354 So.2d 980; Ordering discovery of work product in first party insurance coverage dispute departed from essential requirements of law and was sufficient to form basis for certiorari. American Reliance Ins. Co. v. Rosemont Condominium Homeowners Ass'n, Inc., 671 So.2d 250 (Fla. 3d DCA 1996); Reports

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compiled by various individuals were clearly privileged as work product, justifying issuance of writ of certiorari to quash order requiring their production. Broward Marine, Inc. v. McCall, 392 So.2d 1032 (Fla. 4th DCA 1981); Order denying defendant's objection to certain discovery based on work product doctrine was reviewable by certiorari where denial constituted a departure from the essential requirements of law which would cause material injury to petitioner throughout the remainder of the proceedings and for which a remedy by appeal would be inadequate. Allstate Ins. Co. v. Gibbs, 340 So.2d 1202 (Fla. 4th DCA 1976), certiorari dismissed 354 So.2d 980. Recent Rule 1.280 Cases: A petition for writ of certiorari is appropriate to review a discovery order when the order departs from the essential requirements of law, and would require disclosure negating a petitioner's legal privilege in violation of a clearly established principle of law. A party does not automatically waive any privilege simply by furnishing protected or privileged material to the party's own expert. Rule 1.280(b)(4)(B); Mullins v. Tompkins, 15 So. 3d 798 (Fla. 1st DCA 2009). Discovery requested by estate of deceased patient in medical negligence action against hospital, which sought incident reports for patient's fall and all adverse medical incident reports involving falls of patients under “fall precautions” within past five years, was “cat out of the bag” material, in that inappropriate discovery of such information could not be adequately remedied on direct appeal, and therefore hospital made threshold showing of irreparable harm necessary to invoke appellate court's certiorari jurisdiction to the extent that petition argued that trial court's order compelling discovery required production of materials that were privileged or protected. During discovery, a party need not file a privilege log until the trial court has decided as a preliminary matter whether materials sought are otherwise discoverable. Columbia Hosp. Corp. of South Broward v. Fain, 16 So. 3d 236 (Fla. 4th DCA 2009). (1) legal memoranda were immune from discovery under attorney-client privilege, but (2) bill for legal services prepared for insurer by its attorneys was not immune from discovery to the extent that bill contained a description of billed-for attorney activities that predated the underlying judgment. West Bend Mut. Ins. Co. v. Higgins, 9 So. 3d 655 (Fla. 5th DCA 2009). Discovery rule governing discovery about expert witnesses has been designed to permit discovery about expert witnesses by interrogatories directed to a party. Physician who performed compulsory medical examination of injured motorist could not be ordered to provide to motorist, pursuant to subpoena duces tecum, documents and information relating to the physician's involvement as an expert witness and his performance of other compulsory medical examinations; trial court made no findings of unusual or compelling circumstances warranting discovery directly from physician, rather than by means of interrogatory to the party who engaged the expert. Rule 1.280(b)(4)(A) Miller v. Harris, 2 So. 3d 1070 (Fla. 2d DCA 2009).

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Experts: Information regarding income generated by physician's performance of independent medical examinations for insurance companies and law firms is relevant and discoverable to prove potential bias. Trend South, Inc. v. Antomarchy, 623 So.2d 815 (Fla. 3d DCA 1993), review denied 630 So.2d 1103. Trial court could order physician, who was nonparty in action, to provide authorization allowing respondent's counsel to obtain 1099 forms directly from Internal Revenue Service, where physician's affidavit had effect of admitting that information sought, on issue of how much physician was paid by insurance companies and law firms for independent medical examinations, could not be obtained by means of standard discovery; forms would be sent directly to trial court for in camera inspection as forms might contain information not relevant to issue. Trend South, Inc. v. Antomarchy, 623 So.2d 815 (Fla. 3d DCA 1993), review denied 630 So.2d 1103. Discovery order in medical malpractice action which required all of plaintiff's nontreating medical expert witnesses who would testify at trial to produce for in camera inspection tax returns for preceding five years, to the extent they reflected any income received for reviewing, advising, giving depositions or testifying in any medical malpractice case, and all documents which revealed cases in which experts had provided testimony either in deposition, arbitration, mediation or at trial for medical malpractice in the last five years was appropriate; documents sought contained information which was relevant to credibility of experts, defendants had been unable to obtain the information by other less intrusive means, and plaintiff made no effort to establish why it would be unduly burdensome for experts to produce documents. Wood v. Tallahassee Memorial Regional Medical Center, Inc., 593 So. 2d 1140 (Fla. 1st DCA 1992), review denied 599 So. 2d 1281. Small Claims Distinctions: The Small Claims Rules limit discovery directed at pro se parties. Leave of court must be granted for discovery sought against an unrepresented party (unless the unrepresented party initiates discovery). Fla. Small Claims Rule 7.020. However, if both parties are represented, discovery may be sought. Id. Rule 1.290

DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

Perpetuation of testimony is not discovery. It is to preserve testimony that may not be available or that was not taken in the trial court. Rule that provides for preservation of testimony prior to suit may not be used as general means of obtaining presuit discovery. Publix Supermarkets, Inc. v. Frazier, 696 So.2d 1369 (Fla. 4th DCA 1997); Home Ins. Co. v. Gonzalez, 648 So.2d 291 (Fla. 3d DCA 1995). Where amended counterclaim charged certain plaintiffs with act of forgery or with conspiracy to perpetrate forgery in execution of warranty deed to certain property, and there appeared to be likelihood that defendant might predecease trial date, plaintiffs were entitled to

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depose defendant to preserve his testimony. Florida Keys Boys Club, Inc. v. Pelekis, 265 So.2d 58 (Fla. 3d DCA 1972). Rule 1.300

PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN

May be taken before a notary public, judicial officer, or officer authorized by Florida law or anyone to whom the parties stipulate. The rule specifically excludes relatives of the parties or those with a financial interest in the case. The press does not have a qualified right under Fla. R. Crim. P. and Rule 1.300 to attend deposition proceedings in criminal cases and to obtain copies of unfiled depositions. Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378 (1987), certiorari denied 108 S.Ct. 346, 484 U.S. 954, 98 L.Ed.2d 372, certiorari denied 108 S.Ct. 347, 484 U.S. 954, 98 L.Ed.2d 372. Rule 1.310

DEPOSITIONS UPON ORAL EXAMINATION

Depositions may be taken in person, by telephone, or by videotape. Objections to form and privilege are proper. Rule 1.310(d). Evidence used must be admissible or it may prevent use at trial. Objections as to relevance are not appropriate. Rule 1.310(d). Speaking objections are not appropriate. Multiple depositions of one deponent are only appropriate if: (1) new parties have been added; (2) pleadings have been amended to add new issues; (3) new facts have been elicited from subsequent discovery; (4) a trial deposition is necessary; or (5) the court reporter’s notes are unavailable. Videotaped depositions MUST be noticed as such. The Court may enter an order terminating a deposition. An attorney may suspend a deposition to seek such an order. Such an order is premised upon: the deposition being conducted in bad faith or in such a manner as unreasonably to annoy embarrass, or oppress the deponent or party or objection and instruction to the deponent are contravening rule 1.310(c). See, Rule 1.310(d). Frequently the question arises as to the right of a defendant to take the deposition of a plaintiff who resides outside the jurisdiction of the court where the cause is pending. Under Federal Rule 30, the federal courts have required the plaintiff to appear for deposition on notice of the defendant in the district where the cause is pending, even though the plaintiff may have to travel a long distance unless good cause is shown to the contrary, and a strict view is taken of this. Sometimes the court makes an alternative provision that the plaintiff's deposition may be taken at the place of his residence on condition that the expenses of the defendant's attorney and a reasonable counsel fee in an amount fixed by the court be paid by the plaintiff. Groll v. Stulkin, 12 F.R.D. 262 (1951). In Montgomery v. Sheldon, 16 F.R.D. 34 (1954), the court stated, in relevant part: “The general rule is that a plaintiff, having chosen the forum, must submit to oral examination within the district that he has chosen.” (Plaintiff required to travel from State

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of Washington to New York.); See also, Slade v. Transatlantic Financing Corporation, 21 F.R.D. 146 (1957): “The rule is well settled that a nonresident plaintiff who chooses this forum makes himself available to examination here in the absence of a showing of unreasonable hardship or in the presence of special circumstances.” (plaintiff required to travel from London to New York); The federal courts usually deny the request that plaintiff's deposition be taken by written interrogatories instead of orally, upon the ground that an oral deposition presents greater advantages for discovery. See, Solomon v. Teitelbaum, 9 F.R.D. 515 (1949): “Nor does it appear where the plaintiffs, having embarked upon this litigation, should not assume all the incidents thereof which the law contemplates.” Protection During Course of Examination: The rule provides for protective orders upon motion of any party or witness during the taking of the deposition. There must be a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the witness or party. The court order may stop the examination or may limit the scope and manner of the taking of the deposition as provided in Rule 1.310(b). The motion may be made in the court in which the action is pending or the circuit court where the deposition is being taken. When the deposition is being taken out of the state, it would seem that the motion can be made only to the court where the action is pending. The courts might well consider that this situation would warrant a broad application of Rule 1.310(b) as a preventative against the evils condemned by Rule 1.310(d). In any event, the objecting party or witness may demand the suspension of the examination for the time necessary to make a motion for an order. The last sentence [of Rule 1.310(d)] gives the court power to impose costs or expenses upon either party or upon the witness. In granting the motion, the court may impose costs upon the party taking the deposition for abusing the discovery procedures. In denying the motion, the court may impose costs upon the objecting party or witness if no substantial basis existed for the motion. If the protective order terminates the taking of the deposition, the examination may be resumed only upon the order of the court in which the action is pending. Signature and Changes: Changes in the deposition desired by the witness should be made, not be erasure, but by the officer's entering the change on the deposition with the witness' reasons therefore. The amendments may be of substance as well as of form. The procedure is not applicable to errors made in reporting or transcribing the proceedings. These should be remedied, not by changing, but by correcting the deposition before it is finally certified by the reporter and the officer.

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The examination of the transcribed deposition and the reading of it to the witness may be waived only by the witness and the parties jointly. This waiver provision might be convenient when the examination and reading would require another meeting of the parties, the witness, and the officer taking the deposition. Many attorneys oppose the use of the waiver provision as a matter of general policy. Under paragraph (e) if the reading and signing is to be waived a stipulation to that effect should be incorporated in the stenographic record. Subpoenas: To avoid being assessed with costs it is recommended that all witnesses be served with subpoenas, then if the witnesses do not appear the party is not liable for costs. Transcription, Certification and Filing: The rule should be read with Rule 1.330, providing for waiver of errors and irregularities as to the completion and return of the deposition unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. While requiring the filing of the deposition with the clerk is essential to its availability for use at the trial, there seems to be no good reason why the filing of a deposition taken solely for discovery purposes cannot be waived. The stipulation of waiver should be signed by all parties, since any party may make use of the deposition at the trial. Rule 1.320

DEPOSITIONS UPON WRITTEN QUESTIONS

Within 30 days, other side may serve cross-examination. Redirect examination may be served 10 days after that. Rule 1.330

USE OF DEPOSITIONS IN COURT PROCEEDINGS

For impeachment, may be used by any party. A corporate representative deposition may be used for any purpose. 1.330(d) details witness unavailability requirements. If a portion of a deposition is entered, the Court may permit entry of other portions in the interest of fairness. Generally speaking, a deposition may only be used against party if that party had reasonable notice or was present or represented at taking of deposition does not prevent depositions that fail to meet requirements of that rule from being used at hearings or proceedings where evidence in affidavit form is admissible. Stinnett v. Longi, Inc., 460 So.2d 528 (Fla. 2d DCA 1984); Notice of deposition given to workers' compensation carrier one day before deposition was taken was unreasonable and such deposition was

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not admissible against carrier, which was not present or represented at taking of the deposition. Broward Indus. Plating, Inc. v. Weiby, 394 So.2d 1117 (Fla. 1st DCA 1981). Former testimony hearsay exception, allowing admission of deposition without showing that declarant was unavailable as witness, infringed on Supreme Court's authority to adopt rules for practice and procedure, by obviating and conflicting with statute governing hearsay exceptions when declarant was unavailable and rule governing use of depositions in court proceedings, and denied due process by depriving party of opportunity to confront witness. Grabau v. Department Of Health, Bd. of Psychology, 816 So.2d 701 (Fla. 1st DCA 2002). Party who seeks to raise a Frye objection in a workers' compensation proceeding must do so in pretrial stipulation and at deposition. U.S. Sugar Corp. v. Henson, 787 So.2d 3 (Fla. 1st DCA 2000), corrected, rehearing and rehearing en banc denied, review granted 797 So.2d 590, approved 823 So.2d 104. Trial court improperly granted directed verdict after refusing to permit personal injury plaintiff to read or publish portions of defendant's deposition testimony on the basis that defendant was present and could give live testimony; plaintiff was entitled to use defendant's deposition testimony for any purpose, and court's refusal prevented plaintiff from attempting to prove cause of action. Kelley v. Webb, 676 So.2d 538 (Fla. 5th DCA 1996). Where deposition of decedent defendant was introduced into evidence, testimony of plaintiff concerning transactions between himself and decedent was not barred by dead man's statute (see F.S.A. § 90.602). Cohen v. Glickman, 300 So.2d 318 (Fla. 3d DCA 1974). Rule 1.450 providing that a party may not cross-examine a witness on matters which were not brought out on direct examination is based upon fact that person offering witness' testimony may not be required to vouch for witness' credibility on matters he does not present; deposition offered at trial is different, however, since party noticing and taking deposition does not make deponent his witness, and if another party uses deposition at trial, he makes deponent his witness, and vouches for and is bound by witness' testimony. Thundereal Corp. v. Sterling, 368 So.2d 923 (Fla. 1st DCA 1979), certiorari denied 378 So.2d 350. Error of trial court in refusing to permit plaintiff to use depositions of individual defendant and defendant railroad's managing agent as part of plaintiff's case in chief was not reversible error, where individual defendant and managing agent were both called by plaintiff as adverse witnesses and were subjected to extensive examination and crossexamination, and no attempt was made by plaintiff to demonstrate that excluded depositions contained any testimony or evidence which plaintiff was unable to establish by his examination of individual defendant and managing agent as adverse witnesses. Cooper v. Atlantic Coast Line R. Co., 187 So.2d 673 (Fla. 1st DCA 1966), certiorari denied 194 So.2d 617.

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Parents of year and one-half-old child injured when bitten by ants in outside play area of child care center operated by church were entitled to use deposition testimony of individual allegedly responsible for church building and grounds as substantive evidence without being exposed to individual's evasiveness on witness stand and other self-serving devices and, when parents were not allowed to use individual's deposition, error of a reversible nature occurred. LaTorre By and Through LaTorre v. First Baptist Church of Ojus, Inc., 498 So.2d 455 (Fla. 3d DCA 1986), review denied 503 So.2d 326. Adverse party's use of deposition of party or officer, director or managing agent of public or private corporation is not conditioned upon availability of deponent. Monsalvatge & Co. of Miami v. Ryder Leasing, Inc., 151 So.2d 453 (Fla. 3d DCA 1963); Cooper v. Atlantic Coast Line R. Co., 187 So.2d 673 (Fla. 1st DCA 1966), certiorari denied 194 So.2d 617. Partial Deposition: Where defense counsel had used portions of plaintiff's deposition to impeach plaintiff, it was error, under Florida Civil Rule 1.330(a)(4), to deny plaintiff's attorney the opportunity on redirect examination to use other relevant portions of the deposition to rehabilitate plaintiff. Kaminsky v. Travelers Indem. Co., 474 So.2d 287 (Fla. 3d DCA 1985); but see, contra, Beaches Hospital v. Lee, 384 So.2d 234 (Fla. 1st DCA 1980), petition for review denied 392 So.2d 1371. Fact that deposition of a plaintiff was not completed due to plaintiff's attorney's termination of deposition because of objection to conduct of attorney taking deposition did not preclude use of such deposition, which had been certified as sworn testimony of plaintiff, for impeachment purposes at trial where deposition had been filed and no motion was made to suppress it. Rothschild v. De Gaspari, 287 So.2d 341 (Fla. 3d DCA 1973), certiorari denied 294 So.2d 661. General Admissibility: Admissibility of party's prior deposition testimony did not depend solely on rules of civil procedure, but rested on singular fact that statements were made by him; thus, deposition, relevancy of which was not challenged, was properly admitted against such party. Dinter v. Brewer, 420 So.2d 932 (Fla. 3d DCA 1982); Different or inconsistent prior statements in deposition are admissible. Gidney Auto Sales v. Cutchins, 97 So.2d 145 (Fla. 3d DCA 1957); Claimant's deposition evidence was admissible in unemployment compensation proceeding under hearsay exception for admissions by a party. Warner v. Reiss, 623 So.2d 777 (Fla. 1st DCA 1993). Expert Witness: For use at trial, insured could take deposition of physician who examined him, as testimony of expert witness. Dimeglio v. Briggs-Mugrauer, 708 So.2d 637 (Fla. 2d DCA

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1998); Deposition testimony of employment agency's expert witness was admissible in patient's case-in-chief, in negligence action arising out of injuries sustained by patient while under care of private duty nurse referred by agency, and no special form of notice had to be given prior to admission of the testimony. Robison By and Through Bugera v. Faine, 525 So.2d 903 (Fla. 3d DCA 1987); In medical malpractice action, deposition testimony of patient's expert witness concerning failure to use reasonable and ordinary care and treatment prevailing in community was admissible. Gatlin v. Argonaut Ins. Co., 360 So.2d 459 (Fla. 1st DCA 1978). Jury Use: Jury should not be permitted to take depositions into jury room since this has effect of giving superiority to depositions over oral proof. Gills v. Angelis, 312 So.2d 536 (Fla. 2d DCA 1975), certiorari denied 330 So.2d 17; see also, Schoeppl v. Okolowitz, 133 So.2d 124 (Fla. 3d DCA 1961). Rule 1.340

INTERROGATORIES TO PARTIES

Amount is limited to 30 except in family court matters. Additional interrogatories may be propounded later as long as the total does not exceed 30. If a party seeks more than 30, he or she must demonstrate good cause and obtain a court order. Generally: Test applied in determining whether to require defendant to answer plaintiff's interrogatories was that the interrogatories must narrow the issues and reach matters reasonably calculated to lead to the discovery of admissible evidence concerning the pending action. Watkins v. Mother's Auto Sales, Inc., 264 So.2d 439 (Fla. 3d DCA 1972); Permissible scope of discovery by interrogatories to parties is as wide as that available by deposition upon oral examination. Charles Sales Corp. v. Rovenger, 88 So. 2d 551 (1956). Right of discovery by use of interrogatories is to be liberally construed to end that any matter not privileged and which is relevant to subject matter involved in pending action must be disclosed. Lazarus Homes Corp. v. Gustman, 340 So.2d 513 (Fla. 1976); Marine Inv. Co. v. Van Voorhis, 162 So.2d 909 (Fla. 1964). The restriction on the use of interrogatories to parties may not be evaded by requiring a party to respond to interrogatories directed to a nonparty. Parker v. James, 997 So.2d 1225 (Fla. 2d DCA 2008). A litigant may not use interrogatories to compel his adversary to investigate case for him. Cabrera v. Evans, 322 So.2d 559 (Fla. 3d DCA 1975). Interrogatories served upon governmental agency are to be answered by “officer or agent” thereof “with information available to that party.” Broward County v. Kerr, 454 So.2d 1068 (Fla. 4th DCA 1984).

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Corporations: Corporation would not be required to answer interrogatories by which mortgagor, suing to foreclose on first and second mortgages, sought to discover identities of beneficial owners of the corporation; mortgagor could seek disclosure of such information if and when posture of litigation so warranted. Gemeinschaft Europaischer Kunstler Anastalt v. Miami Freedom Tower, Inc., 625 So.2d 83 (Fla. 3d DCA 1993); Foreign corporation which had not been served with process of any kind could not be ordered to answer interrogatories seeking information concerning jurisdictional and service of process issues. F. Hoffmann LaRoche & Co., Ltd. v. Felix, 512 So. 2d 997 (Fla. 3d DCA 1987); Where interrogatories are served upon a corporate party, the trial court may not order such corporate party to answer the interrogatories by an officer or agent designated by the propounder or by the court. Ohio Realty Inv. Co. v. Lawyers Title Ins. Corp. of Richmond, Va., 244 So. 2d 176 (Fla. 4th DCA 1971). Rule 1.350

PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES

Generally: Information sought to be discovered must relate to issues involved in litigation in which attempt to compel is made. Becker Metals Corp. v. West Florida Scrap Metals, 407 So. 2d 380 (Fla. 1st DCA 1981); Party may not be required to produce documents which it does not have and which are not shown to exist. Balzebre v. Anderson, 294 So.2d 701 (Fla. 3d DCA 1974); A motion for production of documents must not be a mere fishing expedition based on mere suspicion. Hightower v. Bigoney, 145 So.2d 505 (Fla. 2d DCA 1962), reversed on other grounds 156 So.2d 501. Privilege/Relevance: Physician was not required to comply with patient's request for production of “all documents which evidence, relate, or pertain to any prescription drug which you [physician] consume or have taken or consumed,” in patient's medical malpractice lawsuit predicated on allegations that physician engaged in sexual relationship with patient while he treated her and that he breached his fiduciary duty to patient by disclosing to others her confidential psychiatric information; request was so broad that it could require disclosure of every childhood medication that physician had ever taken. Pauker v. Olson, 834 So.2d 198 (Fla. 2d DCA 2002). Overbroad: Discovery order, entered in action arising out of alleged attack in a restroom in a shopping mall, was too broad; the order required, inter alia, production of records regarding criminal activity on shopping malls constructed by petitioner regardless of whether there was any connection between criminal activity in particular mall and tort

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complained of in action. Edward J. DeBartolo Corp. v. Petrin, 497 So.2d 936 (Fla. 5th DCA 1986); In personal representative's negligence action against owner of gasoline station at which decedent was killed in automobile accident, trial court did not abuse its discretion in sustaining gasoline station owner's objections to personal representative's request for production of all accident reports for any of owner's 400 service stations within a five-year period on ground that such request was too broad. Wilson v. Charter Marketing Co., 443 So.2d 160 (Fla. 1st DCA 1983). Pure Bill of Discovery: A “pure bill for discovery” lies to obtain disclosure of facts within defendant's knowledge, or deeds or writings or other things in his custody, in aid of prosecution or defense of action pending or about to be commenced in some other court. Carner v. Ratner, 207 So.2d 310 (Fla. 3d DCA 1968), certiorari denied 211 So.2d 211.

Rule 1.351

PRODUCTION DEPOSITION

OF

DOCUMENTS

AND

THINGS

WITHOUT

Non-party production is permitted through the issuance of a subpoena. Notice shall be served on every other party of the intent to serve the request at least 10 days prior to the issuance of the subpoena (allowing 5 extra days for mail). If there is an objection, the documents shall not be produced. Formerly, there was no hearing on the objection. Rather, relief was sought pursuant to authorized deposition pursuant to Rule 1.310. See, Russell v. Stardust Cruisers, Inc., 690 So.2d 743 (Fla. 5th DCA 1997). NOW, THE RULE HAS CHANGED: (d) Ruling on Objection. If an objection is made by a party under subdivision (b), the party desiring production may file a motion with the court seeking a ruling on the objection or may proceed pursuant to rule 1.310. Thus, the party may request a ruling from the court on the objection. In medical malpractice action, counsel for defendants could not obtain updates of patient's medical records from patient's treating physicians without serving notice on every other party of intent to serve subpoena for production. Figaro v. Bacon-Green, 734 So.2d 579 (Fla. 3d DCA 1999). Procedural rule dealing with objections to requests for discovery of documents or things is self-executing, and there is no need to specify the objections until the deposition of the custodian of the requested discovery takes place. Morgan, Colling & Gilbert, P.A. v. Pope, 756 So.2d 201 (Fla. 2d DCA 2000). Where physician filed uncontradicted affidavit that it would cost nearly $10,000 to produce requested records of payment received by physician from insurers and law firms, trial court's order of payment of $400 towards such expenses was not adequate to comply with Rule of Civil Procedure requiring payment in advance for reasonable expense of preparation of copies. Young v. Santos, 611 So.2d 586 (Fla. 4th DCA 1993).

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Rule 1.360

EXAMINATION OF PERSONS

Generally: Two essential prerequisites that must be clearly manifested before party can be subjected to compulsory mental or physical examination by the court are that petitioner's mental condition be “in controversy,” i.e., directly involved in some material element of cause of action or defense and that “good cause” be shown, i.e., that mental state of party, even though “in controversy,” could not adequately be evidenced without assistance of expert medical testimony. Gasparino v. Murphy, 352 So.2d 933 (Fla. 2d DCA 1977); The requirements that the party seeking a physical examination in discovery in a civil case have good cause for the examination, and that the subject condition be in controversy, are not met by mere conclusory allegations of the pleadings, nor by mere relevance to the case, but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination. Gottlieb v. Samiian, 999 So.2d 678 (Fla. 1st DCA 2008), rehearing denied, review denied 10 So.3d 632. Restricting an insurer's choice of defense medical expert to a physician consulted for a reason other than that for which the examiner was retained is inconsistent with the purpose and plain language of rule permitting examination of party by a qualified expert when the condition that is the subject of the requested examination is in controversy. GEICO General Ins. Co. v. Berner, 971 So.2d 929 (Fla. 3d DCA 2007); Medical reports based on examination requested by a party do not need to be delivered to the other party absent request for such. State v. Mark Marks, P.A., 654 So.2d 1184 (Fla. 4th DCA 1995), rehearing denied, review granted 668 So.2d 603, approved 698 So.2d 533; Defendant does not have absolute right to select expert to perform examination of plaintiff. State Farm Mut. Auto. Ins. Co. v. Shepard, 644 So.2d 111 (Fla. 2d DCA 1994); Rule providing that party may request any other party to submit to examination by a qualified expert when the condition that is the subject of the requested examination is in controversy does not limit the party requesting an independent medical exam (IME) to a single examination of the other party. Royal Caribbean Cruises, Ltd. v. Cox, 974 So.2d 462 (Fla. 3d DCA 2008). Time and Place: Rule governing physical examinations, does not restrict where examination is to be performed. McKenney v. Airport Rent-A-Car, Inc., 686 So.2d 771 (Fla. 4th DCA 1997); No hard and fast rule exists that party cannot be required to submit to physical examination except in county where party resides, and instead, question is matter for trial court's discretion. Id. Availability of appropriate medical speciality will influence extent to which nonresident plaintiff may be accommodated in determining what is reasonable place for independent medical examination (IME). Tsutras v. Duhe, 685 So.2d 979 (Fla. 5th DCA 1997).

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Rule 1.370

REQUESTS FOR ADMISSION

Generally: No more than 30 requests, including subparts, without court order. Acceptable responses: admit, deny, reasons why the request cannot be admitted or denied, or object. An admission is conclusive; a party cannot contravene the admission with subsequent evidence. An admission is conclusive and may be established three ways: (1) through affirmative admission; (2) through failure to respond to a request for admission; and (3) through untimely response to a request for admission. An admission obtained in a response to admit is conclusively established, and does not have to be introduced into evidence, since the admission would not go to a contested issue of fact. Lutsch v. Smith, 397 So.2d 337 (Fla. 1st DCA 1981); Mortgagors' failure to respond to mortgagee's requests for admissions regarding authenticity of copy of mortgage document was deemed admission that copy was true copy of original, in foreclosure action, that precluded mortgagors' later challenge to admission of copy of mortgage. Perry v. Fairbanks Capital Corp., 888 So.2d 725 (Fla. 5th DCA 2004); Failure of state Department of Financial Services to timely respond to policyholder's request for admissions resulted in Department being deemed to have admitted that policyholder was not a member of insolvent self-insurance fund, and thus Department, as receiver for fund, could not recover against policyholder in action that sought to assess policyholder for deficiency regarding insolvency. Florida Dept. of Financial Services v. Tampa Service Co., Inc., 884 So.2d 252 (Fla. 1st DCA 2004). P A party may not withdraw admission without motion to amend admission. In re Forfeiture of 1982 Ford Mustang, Vehicle ID No. ABP16F6CF190433, 725 So.2d 382 (Fla. 2d DCA 1998). Relief from Admissions: Liberal standard of civil procedural rule allowing court to relieve party from effect of technical admission when not prejudicial to party who obtained admission favors amendment in most cases in order to allow disposition on the merits. Ramos v. Growing Together, Inc., 672 So.2d 103 (Fla. 4th DCA 1996): Use of admissions obtained through a technicality should not form basis to preclude adjudication of legitimate claim. Id. Rule 1.380

FAILURE TO MAKE DISCOVERY; SANCTIONS

Generally: Order compelling discovery requires the trial court to assess sanctions against the party or deponent “whose conduct necessitated the motion” for reasonable expenses associated with bringing the motion “unless the court finds that the movant failed to

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certify in the motion that a good faith effort was made to obtain the discovery without court order. . .” Expenses are further associated with a failure to admit (the genuineness of any document or the truth of any matter). Purpose of this rule authorizing award of expenses and attorney fees if a party fails to admit the truth of any matter requested and the other party thereafter proves the truth of such matter is to compel discovery and penalize those parties improperly failing to comply with discovery rules and it is not designed to establish a foundation for the assessment of attorney's fees and costs. Stokes v. Clark, 390 So.2d 489 (Fla. 1st DCA 1980). Striking of pleadings, entry of default, and dismissal of an action are most drastic remedies for failure to make discovery and ordinarily will not be resorted to for purpose of punishing or penalizing a party. Santuoso v. McGrath & Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980); Sanctions under discovery rules are neither punitive nor penal; their objective is to compel compliance with discovery and then only in flagrant or aggravated cases. Leatherby Ins. Co. v. Jones, 332 So.2d 139 (Fla. 3d DCA 1976). Due Process: Party to be sanctioned for discovery violations must first be given notice and opportunity to be heard and offer mitigating or extenuating evidence as to why discovery did not take place; failure to give adequate notice and opportunity to be heard constitutes violation of due process. Wildwood Properties, Inc. v. Archer of Vero Beach, Inc., 621 So.2d 691 (Fla. 4th DCA 1993). Nonparty: Sanctions may not be imposed against nonparty for discovery violation in absence of finding of contempt. Pevsner v. Frederick, 656 So.2d 262 (Fla. 4th DCA 1995). Interrogatories/Requests to Produce: Failure to serve answers to interrogatories subjected the defaulting party, on notice and motion, to the penalty of having any part of any pleading filed by him stricken, or to the dismissal of his action or any part thereof, or to entry of judgment by default against him, but such penalties must be applied within the orbit of a sound judicial discretion. State Road Dept. v. Hufford, 161 So.2d 35 (Fla. 1st DCA 1964), certiorari denied 168 So.2d 144; Sanctions could be imposed against party for failing to produce documents. Williams v. Udell, 690 So.2d 732 (Fla. 4th DCA 1997). Privilege: Although waiver of the attorney-client privilege and work-product privileges is not favored in Florida, the rule requiring creation of a privilege log is mandatory and a waiver can be found by failure to file a privilege log. Gosman v. Luzinski, 937 So.2d 293 (Fla. 4th DCA 2006).

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Sanctions: Prior to imposition of harmful sanction, favors allowing defaulting party in discovery proceeding an additional opportunity for compliance. Goldstein v. Goldstein, 284 So.2d 225 (Fla. 3d DCA 1973); Courts are required to make explicit finding of willful noncompliance in dismissing cause of action for failure to comply with court order. Zaccaria v. Russell, 700 So.2d 187 (Fla. 4th DCA 1997). Rule 1.390

DEPOSITIONS OF EXPERT WITNESSES

Deposition may be taken at any time, regardless of the place of residence of the witness. Fees are permitted in a reasonable amount as determined by the court. There must be a showing of special or exceptional circumstances before party can depose adversary's expert witness who is not to be used at trial. Sun Charm Ranch, Inc. v. City of Orlando, 407 So.2d 938 (Fla. 5th DCA 1981): In medical malpractice action, deposition testimony of patient's expert witness concerning failure to use reasonable and ordinary care and treatment prevailing in community was admissible. Gatlin v. Argonaut Ins. Co., 360 So.2d 459 (Fla. 1st DCA 1978). Fees: Whether witness offered as expert possesses requisite qualifications is question of fact to be determined from testimony bearing on that question and decision of trial court with respect thereto is conclusive unless it appears to have been in error. Central Hardware Co. v. Stampler, 180 So.2d 205 (Fla. 3d DCA 1965), certiorari denied 188 So.2d 805; Trial judges are accorded a wide latitude, subject to exercise of sound discretion, in determining whether a person is an expert witness, for purposes of taxation of his services as costs. State Road Dept. v. Outlaw, 148 So.2d 741 (Fla. 1st DCA 1963). Although plaintiff disputed reasonableness of fee, it was error for trial court to fail to require plaintiff to pay any fee to defense expert deposed by plaintiff. Eppler v. Tarmac America, Inc., 695 So.2d 775 (Fla. 1st DCA 1997), adhered to on rehearing, review granted 705 So.2d 8, review granted 718 So.2d 167, approved 752 So.2d 592; Award of out-of-state expert's travel expenses was not abuse of discretion, even though there was no showing of unavailability of local expertise. C.B.T. Realty Corp. v. St. Andrews Cove I Condominium Ass'n, Inc., 508 So.2d 409 (Fla. 2d DCA 1987); However, taxing as costs charges for time expert waited at trial for convenience of attorneys was improper. Id. Dentist's subpoenas, which sought to take depositions of four dentists who department of professional regulation, board of dentistry, alleged had knowledge of facts supporting administrative complaint filed against dentist, were erroneously quashed for not being accompanied by expert witness fees. Engel v. Rigot, 434 So.2d 954 (Fla. 3d DCA 1983).

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42

Jury and Nonjury Trial

Prepared and Presented by:

Hon. Lisa S. Walsh Dade County Courthouse

43

44

Jury and Non-Jury Trial

Hon. Lisa S. Walsh

I. JURY AND NON-JURY TRIAL A. Right to Trial by Jury Rule 1.430, Fla. R. Civ. P. Right to jury trial as declared by statute or constitution shall be “preserved inviolate.” Rule 1.430(a), Fla. R. Civ. P. “The right of trial by jury shall be secure to all and remain inviolate.” Art. 1, § 22, Fla. Const. B. Demand for Jury Trial Any party may demand a jury trial by: “serving upon the other party a demand therefore in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue.” Rule 1.430(b), Fla. R. Civ. P. B1. Late Demand and Waiver Failure to demand by time specified under Rule 1.430(b) constitutes a waiver of the right to jury trial. However, where demand is untimely, trial court exercises “sound discretion” to determine whether justice requires granting untimely motion for jury trial. Herrera v. Wee Care of Flagler County, Inc., 615 So. 2d 223 (Fla. 5th DCA 1993). B2. Injecting “New Issue” Revives Right to Jury Trial If amended complaint or answer injects “new issue” into case, the right to demand jury trial is revived. Dr. Phillips, Inc. v. L & W Supply Corp., 790 So. 2d 539 (Fla. 5th DCA 2001). If late demand for jury trial is made in amended pleadings injecting new issue into case, trial court must determine whether injustice or unreasonable inconvenience is suffered by nondemanding party. Id.

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B3. No Subsequent Waiver Unless Agreement Once either party demands a jury trial, the right may be waived only by consent of the parties. Rule 1.430(d), Fla. R. Civ. P.; Shasho v.Euro Motor Sport, Inc., 979 So. 2d 343 (Fla. 4th DCA 2008) (even where default on liability entered, jury trial on damages may not be waived absent consent of the parties). No waiver may be inferred by inaction or silence. Hornblower v. Cobb, 932 So. 2d 402 (Fla. 2d DCA 2006). Waiver must be manifested in writing or announcement in open court. Id. C. Pre-Jury Trial Conference or Calendar Call Rule 1.200(b), Pretrial Conference After the action is at issue, the court itself may or shall on the timely motion of any party require the parties to appear for a conference to consider and determine: (1) the simplification of the issues; (2) the necessity or desirability of amendments of the pleadings; (3) the possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof; (4) the limitation of the number of expert witnesses; (5) the potential use of juror notebooks; and (6) any matters permitted under subdivision (a) of this rule. Under subsection (d) of the rule, the court is required to make an order reciting the action taken at the conference. C1. Pretrial Order Controls After its entry, pretrial order controls subsequent course of the case. If an issue is not reserved in pretrial order, its proof is no longer required at trial. See Cooke v. Insurance Co. of North America, 652 So. 2d 1154 (Fla. 2d DCA 1995) (where conditions precedent were not reserved in pretrial order, issue deemed waived and proof not required at trial). Failure to appear at pretrial hearing or calendar call may only result in dismissal of action with prejudice where dismissal was willful and flagrant disregard of court order. Lahti v. Porn, 624 So. 2d 765 (Fla. 4th DCA 1993).

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C2. Limitation of Experts While the trial court has broad discretion to limit the number of experts, discretion is abused where different experts required because of different specialties. See Elder v. Farulla, 768 So. 2d 1152 (Fla. 2d DCA 2000). C3. Subpoenas Rule 1.410, Florida Rule of Civil procedure provides that every subpoena for testimony or to produce documents or tangible objects shall be issued by the clerk or the attorney of record to appear and give testimony at a time and place certain. A subpoena is necessary to compel the presence of a witness or adverse party. Attorneys should be mindful to serve trial subpoenas a reasonable time before the trial is scheduled. Further, make sure of compliance with fee requirements under statute. See § 92.151, Fla. Stat. (2008).

II. Voir Dire Purpose of voir dire is to ensure right to fair and impartial trial by qualified jurors, free from bias or interest. Ritter v. Jiminez, 343 So. 2d 659 (Fla. 3d DCA 1977). Rule 1.431, Florida Rules of Civil Procedure provides that clerk may furnish jurors with questionnaire in the form approved by the supreme court. Jurors may be asked to complete the form. Alternatively, may suggest that trial judge question prospective panel from questionnaire, so questioning is uniform and areas relevant to particular case are covered. A. Length of Examination Trial court has considerable discretion in setting the length that a litigant may examine the panel of prospective jurors. Litigant who is denied sufficient time to examine jurors must request additional time, proffer questions and establish that could not determine prospective jurors’ fairness in time allotted absent proffered questions. See, e.g., Wilson v. State, 676 So. 2d 1000 (Fla. 2d DCA 1996). Trial court decision, in accordance with Ritter v. Jiminez, 343 So. 2d 659 (Fla. 3d DCA 1977), to perform initial examination and limit attorneys’ follow-up questions to 20 minutes per side

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affirmed in Allen v. Se-Go Industries, Inc., 510 So. 2d 1097 (Fla. 3d DCA 1987). However, strict limitation to number or questions or unreasonable time limitation was abuse of discretion in Campbell v. State, 812 So. 2d 540 (Fla. 4th DCA 2002) and Carver v. Niedermayer, 920 So. 2d 123 (Fla. 4th DCA 2006).

B. Questioning by Attorneys Rule 1.431(b), Florida Rules of Civil Procedure, provides that the parties have the right to examine jurors orally on voir dire. “The right of the parties to conduct a reasonable examination of each juror orally shall be preserved.” While the trial court certainly has the discretion to limit repetitive and argumentative voir dire, to prohibit counsel from asking improper questions or questions that illicit answers on legal issues the jurors have not been instructed on, and to preclude attorneys from pre-trying their cases or in obtaining a commitment on ultimate issues to be decided after hearing all of the evidence, a trial judge must allow counsel to ascertain latent or concealed prejudgments by prospective jurors. Figueroa v. State, 952 So. 2d 1238 (Fla. 3d DCA 2007).

C. Objectionable Questions The most frequent objection made during voir dire questioning by counsel is that the opposing counsel is “pretrying” the case. Objectionable “pretrying” the case means that an attorney is trying to commit jurors to a particular verdict upon a set of hypothetical facts. Williams v. State, 744 So. 2d 1103 (Fla. 3d DCA 1999); Stevens v. State, 928 So. 2d 409 (Fla. 3d DCA 2006). Many lawyers confuse pretrying with permitted voir dire. It is important to the lawyers that they be permitted to determine if the jurors can fairly weigh their theories of the case. Parties have the right to question the prospective jurors on essential elements or theories of their case. For example, completely prohibiting questioning on personal injury awards or damages was deemed to be error. See Sisto v.

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Aetna Casualty and Surety Co., 689 So. 2d 438 (Fla. 4th DCA 1997). See also Lavado v. State, 492 So. 2d 1322 (Fla. 4th DCA 1998) (error to prohibit defense from questioning on theory of the case); Moses v. State, 535 So. 2d 350 (Fla. 4th DCA 1988) (error to prohibit defense from questioning jurors on bias if defendant is convicted felon).

D. Challenges for Cause D1. Standard for Granting a Challenge for Cause Test for juror competency is whether they can lay aside any potential biases and render a verdict based solely on the evidence. Embleton v. Senatus, 993 So. 2d 593 (Fla. 4th DCA 2008); Trotter v. State, 576 So. 2d 691 (Fla. 1990). If any reasonable doubt exists as to that juror’s ability to be impartial, they should be excused for cause. Algie v. Lennar Corp., 969 So. 2d 1135 (Fla. 4th DCA 2007); James v. State, 731 So. 2d 781 (Fla. 3d DCA 1999). Ambiguities or doubts should be resolved in favor of excusing the juror. Id. Mere preconceived notions do not rise to the level of requiring a cause challenge, so long as court is satisfied that they can set aside this knowledge and remain impartial. See. e.g. Rolling v. State, 695 So. 2d 278, 285 (Fla. 1997) (holding that venue need not be changed solely because juror has prior knowledge of facts of case, so long as jurors can remain impartial). Finally, doubts raised by initial statements are not necessarily dispelled by later rehabilitation by the judge. Hall v. State, 682 So. 2d 208 (Fla. 3d DCA 1996). D2. Preservation and Appeal of Denial of Challenge for Cause To preserve error, complaining party must show that he was wrongfully forced to exhaust his peremptory challenges because of the erroneous denial of a cause challenge. He must (1) exhaust all peremptory challenges, (2) request an additional challenge, (3) identify a juror whom he would have struck for cause or peremptorily had he not been forced to exhaust all peremptory challenges. Finally, party must renew the objection before the jury is sworn. Trotter v. State, 576 So. 2d 691 (Fla. 1991). In other words, counsel cannot accept the panel and sit silently then complain about the error on appeal if party loses the case.

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On appeal, a trial court’s ruling on a challenge for cause will not be disturbed absent “manifest error.” Davis v. State, 859 So. 2d 465 (Fla. 2003). E. Peremptory Challenges E1. Number of Challenges Rule 1.431(d), Fla. R. Civ. P. Each party is entitled to 3 peremptory challenges. If the interests of multiple parties on the same side are “essentially or potentially different or hostile,” each party should be given 3 challenges, and the adverse party should be granted an equal number of challenges. But if the interests of different parties on the same side are common, they should be treated as one party for the purpose of granting peremptory challenges. See Lemoine v. Cooney, 514 So. 2d 391 (Fla. 4th DCA 1987); St. Paul Fire and Marine Ins. Co. v. Welsh, 501 So. 2d 54 (Fla. 4th DCA 1987). If party is deprived of a peremptory challenge, deemed to be reversible error, if properly preserved. See below. E2. Objection to Party’s Exercise of a Peremptory Challenge The three-step analysis to be applied to an objection to the adverse party’s exercise of a peremptory challenge under Melbourne v. State, 679 So. 2d 759 (Fla. 1996), is as follows: [Step 1.] A party objecting to the other side's use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. [Step 2.] At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation. [Step 3.] If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained.

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Melbourne, 679 So. 2d at 764. Focus is primarily upon step 3 – whether the reason proffered, if race-neutral, is genuine. Judges have confused step 2 with step 3. A finding that a reason is race-neutral is not the same as finding that the strike is being genuinely exercised in a non-discriminatory manner. See Julmice v. State, __ So. 2d __; 34 Fla. L. Weekly D1298 (Fla. 3d DCA June 24, 2009). E1. Appeal of Order Granting or Denying the Exercise of a Peremptory Challenge On appeal, peremptory challenges are presumed to be exercised in a nondiscriminatory manner. Porter v. State, 708 So. 2d 338 (Fla. 3d DCA 1998). Burden of persuasion never leaves the proponent of the strike to prove purposeful discrimination. Melbourne, 679 So. 2d at 764. The trial court’s decision “turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous.” Id.

III. Opening Statement and Closing Argument A. Argument versus Opening “Opening remarks are not evidence, and the purpose of opening argument is to outline what an attorney expects to be established by the evidence.” Occhicone v. State, 570 So. 2d 902 (Fla. 1990); Gonzalez v. State, 990 So. 2d 1017 (Fla. 2008). B. Improper remarks Improper remarks during opening or improper argument at closing violate not only the rules of procedure but the rules of professional responsibility. Laundry list of improper remarks: 1. Appeal to Race Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006) 2. Misstate Evidence; Personal Opinion About Veracity of Evidence SDG Dadeland Associates, Inc. v. Anthony, 979 So. 2d 997 (Fla. 3d DCA 2008) 3. Attorney’s Assertion that They Have Personal Knowledge Outside Evidence

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Thornton v. State, 852 So. 2d 911 (Fla. 3d DCA 2003) 4. Suggesting Counsel Coached the Witness Thornton v. State, 852 So. 2d 911 (Fla. 3d DCA 2003); Lewis v. State, 780 So. 2d 125 (Fla. 3d DCA 2001) 5. Accusing counsel of hiding evidence or preventing introduction of relevant evidence constitutes reversible error Wall v. Costco Wholesale Corp., 857 So. 2d 975 (Fla. 3d DCA 2003); SDG Dadeland Associates, Inc. v. Anthony, 979 So. 2d 997 (Fla. 3d DCA 2008) 6. Improper Bolstering Fryer v. State, 693 So. 2d 1046 (Fla. 3d DCA 1997); Cisneros v. State, 678 So. 2d 888 (Fla. 4th DCA 1996) 7. Golden Rule SDG Dadeland Associates, Inc. v. Anthony, 979 So. 2d 997 (Fla. 3d DCA 2008), Coral Gables Hospital, Inc. v. Zabala, 520 So. 2d 653 (Fla. 3d DCA 1988) 8. “Message to the Community” Eure v. State, 764 So. 2d 798 (Fla. 2d DCA 2000); Bertolotti v. State, 476 So. 2d 130 (Fla. 1985) 9. Denigrate Adverse Party, Attorney or Case Presented Adams v. State, 830 So. 2d 911 (Fla. 3d DCA 2002) “attacks on defense counsel are highly improper and impermissible . . . .” Lewis v. State, 780 So. 2d 125 (Fla. 3d DCA 2001) Invited Response All too often, offending remarks are made in response to improper remarks made by opposing party’s closing argument. Court must take into account whether improper remarks are invited error. See United States v. Young, 470 U.S. 1 (1985).

IV. Cross-Examination “Cross examination of a witness is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in its discretion, permit inquiry into additional matters.” § 90.612(1)(2), Fla. Stat. (2009).

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A. Scope When the direct examination opens a general subject, the crossexamination may go into any phase, and may not be restricted to mere parts ... or to the specific facts developed by the direct examination. Cross-examination should always be allowed relative to the details of an event or transaction a portion only of which has been testified to on direct examination. As has been stated, cross-examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut or make clearer the facts testified to in chief. Lindsey v. State, 14 So. 3d 211, 218 (Fla. 2009) (quoting Coxwell v. State, 361 So. 2d 148, 151 (Fla. 1978)) B. Adverse Witness If an adverse witness is called by a party, the scope of cross-examination is limited to the direct. Charles W. Ehrhardt, Florida Evidence, § 612.2 (2009 Edition). Leading questions of adverse or hostile witnesses are permitted on direct examination. § 90.612(3), Fla. Stat. (2009).

V. Juror Questioning of Witnesses Rule 1.452, Florida Rules of Civil Procedure provides: (a) Questions Permitted. The court shall permit jurors to submit to the court written questions directed to witnesses or to the court. Such questions will be submitted after all counsel have concluded their questioning of a witness. (b) Procedure. Any juror who has a question directed to the witness or the court shall prepare an unsigned, written question and give the question to the bailiff, who will give the question to the judge. (c) Objections. Out of the presence of the jury, the judge will read the question to all counsel, allow counsel to see the written

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question, and give counsel an opportunity to object to the question. Here is the standard jury instruction: During the trial, you may have a question you think should be asked of a witness. If so, there is a procedure by which you may request that I ask the witness a question. After all the attorneys have completed their questioning of the witness, you should raise your hand if you have a question. I will then give you sufficient time to write the question on a piece of paper, fold it, and give it to the bailiff, who will pass it to me. You must not show your question to anyone or discuss it with anyone. I will then review the question with the attorneys. Under our law, only certain evidence may be considered by a jury in determining a verdict. You are bound by the same rules of evidence that control the attorneys' questions. If I decide that the question may not be asked under our rules of evidence, I will tell you. Otherwise, I will direct the question to the witness. The attorneys may then ask follow-up questions if they wish. If there are additional questions from jurors, we will follow the same procedure again. By providing this procedure, I do not mean to suggest that you must or should submit written questions for witnesses. In most cases, the lawyers will have asked the necessary questions. This new rule and instruction were brought to the Supreme Court of Florida by the Jury Innovations Committee of the Florida Bar. To see the 48 changes recommended to the Suprteme Court of Florida by this committee, long on to www.flcourts.org/pubinfo/summaries/briefs/01/01-1226/index.html

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VI. Directed Verdict and JNOV At the close of the evidence offered by Plaintiff, adverse party may move for directed verdict pursuant to Rule 1.480, Florida Rules of Civil Procedure. Under 1.480(b), if the motion is denied, the grounds are deemed to be reserved by the trial court for consideration after return of an adverse verdict: (b) Reservation of Decision on Motion. When a motion for a directed verdict made at the close of all of the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 10 days after the return of a verdict, a party who has timely moved for a directed verdict may serve a motion to set aside the verdict and any judgment entered thereon and to enter judgment in accordance with the motion for a directed verdict . If a verdict was not returned, a party who has timely moved for a directed verdict may serve a motion for judgment in accordance with the motion for a directed verdict within 10 days after discharge of the jury. Failure to file a motion for new trial within 10 days of the verdict is deemed a waiver. A. Standard for Granting a Directed Verdict A1. Standard for Directing Verdict “A party moving for directed verdict admits the truth of all facts in evidence and every reasonable conclusion or inference which can be drawn from such evidence favorable to the nonmoving party.” Williamson v. Superior Insurance Company, 746 So. 2d 483, 485 (Fla. 2d DCA 1999). A motion for directed verdict should be denied “if conflicting evidence has been presented by the parties.” Id.

When the proponent of permanency supports that hyporhtesis with expert testimony, the opponent of permanency, in order to carry the issue to the jury, must either: (1) present

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countervailing expert testimony; (2) severely impeach the proponent’s expert; or (3) present other evidence which creates a direct conflict with the proponent’s evidence. Rose v. Dwin, 762 So. 2d 532 (Fla. 4th DCA 2000) (quoting Jarrell v. Churm, 611 So. 2d 69, 70 (Fla. 4th DCA 1992)). A2. Jury Free to Reject Expert Testimony Where Conflicting Lay Testimony Jury is free to disregard expert testimony in the face of conflicting lay testimony. See Easkold v. Rhodes, 614 So. 2d 495, 498 (Fla. 1993). See also Katz v. Ghodsi, 682 So. 2d 586, 588 (Fla. 3d DCA 1996) (even where all experts agreed that patient had herniated disc, question of permanency was rebutted by conflcting lay testimony, thus, directed verdict incorrectly granted).

A3. Jury Not Free to Disregard Completely Unrebutted Expert Evidence “A jury is not free to reject uncontroverted medical testimony indicating a permanent injury.” Williamson, 746 So. 2d at 485. See also Campbell v. Griffith, 971 So. 2d 232, 236 (Fla. 2d DCA 2008) (“when medical evidence on permanence or causation is undisputed, unimpeached, or not otherwise subject to question based on other evidence presented at trial, the jury is not free to simply ignore or arbitrarily reject that evidence and render a verdict in conflict with it”) Further, if conflicts in lay evidence are “minor and indirect” or “immaterial” on issue of permanency, not error to grant a directed verdict. Allstate Insurance Company v. Thomas, 637 So. 2d 1008, 1009 (Fla. 4th DCA 1994).

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VII. Post-Verdict Juror Interview and Ethical Considerations Rule 1.431(h), Fla. R. Civ. P. (h) Interview of a Juror. A party who believes that grounds for legal challenge to a verdict exists may move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject to the challenge. The motion shall be served within 10 days after rendition of the verdict unless good cause is shown for the failure to make the motion within that time. The motion shall state the name and address of each juror to be interviewed and the grounds for challenge that the party believes may exist. After notice and hearing, the trial judge shall enter an order denying the motion or permitting the interview. If the interview is permitted, the court may prescribe the place, manner, conditions, and scope of the interview. Rule 4-3.5(d)(4), Rules Regulating the Florida Bar A lawyer shall not (4) after dismissal of the jury in a case with which the lawyer is connected, initiate communication with or cause another to initiate communication with any juror regarding the trial except to determine whether the verdict may be subject to legal challenge; provided, a lawyer may not interview jurors for this purpose unless the lawyer has reason to believe that grounds for such challenge may exist; and provided further, before conducting any such interview the lawyer must file in the cause a notice of intention to interview setting forth the name of the juror or jurors to be interviewed. A copy of the notice must be delivered to the trial judge and opposing counsel a reasonable time before such interview. The provisions of this rule do not prohibit a lawyer from communicating with members of the venire or jurors in the course of official proceedings or as authorized by court rule or written order of the court. These rules must be read together.

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“Post trial juror interviews should be ‘rarely granted and the sanctity of the jury process as well as the privacy rights of the jurors themselves should be closely guarded and protected.’” Sterling v. Feldbaum, 980 So. 2d 596, 599 (Fla. 4th DCA 2008) If there are reasonable grounds to believe concealment of a material fact, an interview should be granted. Id., citing Singletary v. Lewis, 584 So. 2d 634, 636 (Fla. 1st DCA 1991). Presuming the complaining party was diligent in its questioning during voir dire, the question becomes whether the complaining party would be entitlked to a new trial based upon the allegations in their motion. If not, no interview should be granted. See Egitto v. Wittman, 980 So. 2d 1238 (Fla. 4th DCA 2008); Baptist Hospital of Miami, Inc. v. Maler, 579 So. 2d 97 (Fla. 1991).

VIII. Appeal Rule 1.450, Fla. R. Civ. P. If evidence is excluded at a jury trial, examining attorney may proffer. Proffer may take place outside presence of the jury. It is critical, if evidence is excluded, that the record reflect what that evidence would have been and what impact its preclusion had upon the case presented. If the complaining party does not prevail, the lack of record support may foreclose appeal of the issue.

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Rules of Evidence

Don S. Cohn Miami Dade County Court Judge Tel.: (305) 349-7034 Email: [email protected]

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I HEAR SAY IT’S HEARSAY- OR NOT? A summary of Hearsay, Non-hearsay, and Hearsay exceptions.

I.

Hearsay Statements- Section 90.801, Fla. Stat.

(A) What is a “Statement”? •

Oral or written assertion

•

Nonverbal if it is intended by the person as an assertion.

(B) Who is a “declarant”? •

A person who makes a statement

(C) What is “hearsay”? •

A statement other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of matter asserted

(D) What is not “hearsay”? •

Statement where the declarant testifies at the trial or hearing and is subject to cross-examination and the statement is

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o Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition (Section 90.614 Fla. Stat.)Impeachment. o Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant or improper influence, motive, or recent fabrication o One of identification of a person made after perceiving the person.

Reasons for Exclusion of Hearsay

1. Hearsay statements are not made under oath. 2. When statements are made outside a courtroom, the jurors cannot observe the demeanor of the declarant and judge his or her credibility in the same manner as they can in determining the weight and reliability that should be given other evidence. 3. The lack of an opportunity to cross-examine the person who made the out of court statement to test the person’s perception, memory, sincerity, and accuracy of the description of the event raises serious questions concerning the reliability of the statement.

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Lyles v. State 412 So.2d 458 (Fla. 2d DCA 1982); State v. Freber 366 So. 2d 426 (Fla. 1978); and Ray v. State 31 So.2d 156 (Fla. 1947).

Out of Court Statement

Hearsay includes both an out-of-court statement by someone other than the witness on the stand who is testifying to the statement as well as out-of-court statement of a witness who testifies at trial.

Gudinas v. State 693 So.2d 953 (Fla. 1997); Minnis v. State 645 So.2d 160 (Fla. 4th DCA 1994); Tindall v. State 645 So.2d 160 (Fla. 4th DCA 1994); Ellis v. State 622 So.2d 991 (Fla. 1993); and Carter v. State 951 So.2d 939 (Fla. 4th DCA 2007).

Presence of Opposing Party

In some areas of Florida there is an unwritten evidentiary rule a statement is not hearsay when it is made in the presence of a party to the action. This “rule” has no support in Florida appellate decisions which have expressly held to the contrary.

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Brown v. State, 367 So.2d 616 (Fla. 1979); J. J. H. v. State 651 So.2d 1239 (Fla. 5th DCA 1995) and Privett v. State 417 So.2d 805 (Fla. 5th DCA 1982)

Hearsay Statements, by a Criminal Defendant When the defendant seeks to introduce testimony concerning his or her own outof-court statements for the truth of the matter stated it is hearsay. If defendant can introduce evidence to provide foundation for any enumerated exception, the hearsay rule does not exclude evidence of his or her statement. If the defendant offers evidence of his or her statement it is not an admission because it is not being offered against the party who made the statement. If the defendant offers his or her own statement simply to show it was made rather than to establish the truth of the matter contained in the statement, the fact the statement was made must be relevant to the lawsuit. Therefore evidence of a defendant’s out-of-court exculpatory statement is hearsay if offered by the defendant but is admissible as an admission under Section 90.803 (18) Fla. Stat.

Rodriguez v. State 591 So. 2d 308 (Fla. 3rd DCA 1991); Barber v. State 576 So. 2d 825 (Fla. 1st DCA 1991) Cotton v. State 736 So.2d 437 (Fla. 4th DCA 2000).

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II.

Non-Hearsay- 90.801 (2), Fla. Stat.

Any out-of-court statements that are not included within the Section 90.801 Fla. Stat. definition are not hearsay. They are admissible if they are relevant and not inadmissible under any other exclusionary rule. If the statement was not an assertion or is not offered to prove the truth of the facts contained in the statement, it is not hearsay. Section 90.801 (2), Fla. Stat. specifically provides three types of statements by a witness who testifies at the trial are not hearsay. An out-of-court that is not offered to prove the truth of the matter asserted to prove the facts contained in it are true is not hearsay. Breedlove v. State 413 So.2d 1 (Fla. 1982); Ortiz v. State 654 So.2d 1002 (Fla. 4th DCA 1995). State v. Eubanics 609 So.2d 107 (Fla. 4th DCA 1992). Warner v. Walker 500 So.2d 545 (Fla. 2nd DCA 1986) State v. McPhadder 452 So.2d 1017, decision quashed on other grounds 475 So.2d 1215 (Fla. 1985)

When a statement is offered to prove that it was made rather than to prove its contents, it is not hearsay.

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Colina v. State 570 So.2d 929 (Fla. 1990); Cowley v. State 592 So.2d 723 (Fla. 1st DCA 1992) rev’d on other grounds, 620 So.2d 180 (Fla. 1993); Wyndham v. AM South Bank of Florida 581 So.2d 630 (Fla. 1st DCA 1991); Harrison v. Housing Management, Inc. 588 So.2d 64 (Fla.1st DCA 1991); and Jenkins v. Gillen, 450 So.2d 892 (Fla. 4th DCA 1984).

In order for evidence that a statement was made to be relevant, a material issue in the lawsuit must be whether the statement was made.

Barber v. State 576 So.2d 825 (Fla. 1st DCA 1991); Wise v. State 546 So.2d 1068 (Fla. 2nd DCA 1989); and Dorsey v. Reddy 931 So.2d 259 (Fla. 5th DCA 2006)

In other words counsel cannot avoid the hearsay rule simply by introducing a statement to prove it was made. When doing so, counsel must point to a material issue that involves whether the statement was made.

Beatty v. State 486 So.2d 59 (Fla. 4th DCA 1986); Cotton v. State 763 So.2d 437 (Fla. 4th DCA 2000); Marcias v. State 673 So.2d 176 (Fla. 4th DCA 1996) and Chatman v. State 687 So.2d 860 (Fla. 1st DCA 1997)

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Prior inconsistent statements offered to impeach the credibility of a witness are not hearsay because they are not offered to prove the truth of the prior statement but rather that the witness has made two inconsistent statements and therefore should not be believed. C. L. W. v. State 920 So.2d 109 (Fla. 1st DCA 2006)

Non-Assertive Conduct

Non-verbal conduct is hearsay when it is assertive conduct and is offered to prove the truth of the conduct. See Section 90.801 (1)(a) 2 Fla. Stat. and Lubbock Feed Lots, Inc. v. Iowa Beef Processors, Inc. 630 F.2d 250 (5th Cir. 1980). Assertive conduct is conduct by which the actor intends to communicate to a third party. If evidence of the conduct is not offered to prove the truth of what the person intended to communicate but is offered as evidence to form the basis from which an inference of another fact may be drawn, the conduct is not hearsay and would be admissible if it were relevant and not otherwise excludable. Conduct that is not intended to communicate- i.e. that is not intended as an assertion- is excluded from the definition of hearsay. When a person acts without intending to communicate a belief, the person’s veracity and the attendant hearsay dangers are not involved. U.S. v. Butler 763 F.2d 11 (1st Cir. 1985). Non-assertive conduct is admissible when it is relevant and is not excluded under another rule.

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Verbal Acts When words have independent legal significance evidence that they were said is not hearsay. These words are sometimes called “verbal acts”.

A. J. v. State 677 So. 2d 935 (Fla. 4th DCA 1996). State v. Walken 536 So.2d 1017 (Fla. 1988); Chacon v. State 102 So.2d 578 (Fla. 1957); Dawson v. State 1951 So.2d 931 (Fla. 4th DCA 2007); Pronesti v. State 847 So.2d 1165 (Fla. 5th DCA 2003); and Arguelles v. State 842 So.2d 939 (Fla. 4th DCA 2003).

Testimony the words were or were not spoken is offered to prove statements were made rather than to prove their truth.

M. F. Patterson Dental Supply Co. v. Wadley 401 F.2d 167 (10th Cir. 1968); Cephas v. State, Dept. of Health and Rehabilitative Services 719 So.2d 7 (Fla. 2nd DCA 1998). State of NY v. Hendrickson Bros. Inc. 840 F.2d 1065 (2nd Cir. 1988); A. J., supra; and Burkey v. State 922 So.2d 1033 (Fla. 4th DCA 2006); C.F. Porter v. State 715 So.2d 1018 (Fla. 2nd DCA 1998).

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Statements Describing Ambiguous Acts A transaction occurs the meaning of which would be ambiguous without the statement. e.g. – Transfer of $5,000 in cash from A to B may have many meanings. A’s statement at time of transfer may show transfer was loan, gift, bribe or repayment of loan These statements are generally not hearsay.

Zeigler v. State 402 So.2d 365 (Fla. 1981); Armstrong v. State 642 So.2d 730 (Fla. 1994); Longual v. State 914 So.2d 1098 (Fla. 4th DCA 2005); Stotler v. State 834 So.2d 940 (Fla. 4th DCA 2003) and Stevens v. State 642 So.2d 828 (Fla. 2nd DCA 1994)

Statements Offered to Show the State of Mind of the Hearer Evidence of an out-of-court statement offered to prove the state of mind of a person who heard the statement is not hearsay.

Blackwood v. State 777 So.2d 399 (Fla. 2000); Foster v. State 778 So.2d 906 (Fla. 2000); Koon v. State 513 So.2d 1253 (Fla. 1987); Dorsey v. Reddy 931 So.2d 259 (Fla. 5th DCA 2006); Buchanan v. State 743 So.2d 59 (Fla. 2nd DCA 1999); Dade County Police Benev. Ass’n v. Town of Surfside 721 So.2d 746 (Fla. 3rd DCA 1998); Taylor v. State 601 So.2d

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1304 (Fla. 4th DCA 1992); and Crumley v. State 534 So.2d 909 (Fla. 1st DCA 1988)

Whenever a material issue in an action involves the state of mind of a person, outof-court statements which are probative of that issue are admissible if they are offered to prove this state of mind.

Daniels v. State 606 So.2d 482 (Fla. 5th DCA 1992); Alfaro v. State 837 So.2d 429 (Fla. 4th DCA 2002); Hotelera Naco, Inc., v. Chirea 708 So.2d 961 (Fla. 3rd DCA 1998); Spatz v. Kirby 705 So.2d 657 (Fla. 3rd DCA 1998); and Everett v. State 801 So.2d 189 (Fla. 4th DCA 2001).

Prior Inconsistent Statements Under Oath

Under Section 90.801 (2) Fla. Stat. when a declarant testifies at trial and is subject to cross-examination, a prior inconsistent statement is admissible as substantive evidence of the facts contained in the statement if it was given under oath, subject to the penalty of perjury, at a trial, hearing, or other proceeding, or in a deposition.

Moore v. State 452 So.2d 559 (Fla. 1984); Ibar v. State 938 So.2d 451 (Fla. 2006), cert. denied, 127 S. Ct. 1326 (U.S. 2007); Jennings v. State

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512 So.2d 169 (Fla. 1987); Webb v. State 426 So.2d 1033 (Fla. 5th DCA 1983), petition for review denied 440 So.2d 354 (Fla. 1983).

Whether a prior statement is inconsistent with the testimony of the witness is a preliminary question of fact for the trial judge. If during a trial a witness testifies to a lack of memory concerning a particular fact, the issue arises as to whether that testimony is inconsistent with a prior statement asserting the fact to be true. If the trial court determines that the lack of memory is feigned, it is generally treated as a denial of the prior statement. U.S. v. Cisneros-Gutierrez 517 F.3d 751 (5th Cir. 2008); U.S. v. Mornan 413 F.3d 372 (3rd Cir. 2005); U.S. v. Gajo 290 F.3d 922 (7th Cir. 2002); U.S. v. DiCaro, 772 F.2d 1314 (7th Cir. 1985); U.S. v. Williams 737 F.2d 594 (7th Cir. 1984); and U.S. v. Palumbo 639 F.2d 123 (3rd Cir. 1981).

If the witness truly cannot remember when he or she testifies, the question remains open as to whether the prior statement may be admitted under Section 90.801 (2)(a), Fla. Stat. The declarant must testify at trial and be subject to cross examination concerning the prior statement. There is no requirement the declarant have notice the prior statement was made or that the declarant have an opportunity to cross-examine the witness at the time the prior statement was made. A deposition may be admissible under Section 90.801 (2)(a) Fla. Stat. even if it was not admissible under the Florida Rules of Civil Procedure. However depositions in

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criminal cases are not admissible under the Rules of Criminal Procedure Rodriguez v. State 609 So.2d 493 (Fla. 1992). Both federal and Florida courts have decided that testimony before a grand jury is given during a proceeding so that prior inconsistent statements before the grand jury are included within Section 90.801 (2) Fla. Stat., Moore v. State 452 So.2d 559 (Fla. 1984); Webb v. State 426 So.2d 1033 (Fla. 5th DCA 1983) petition for review denied 440 So.2d 354 (Fla. 1983), and Hills v. State 428 So.2d 318 (Fla. 1st DCA 1983). When other statements are made during a “proceeding” is unclear. Arner v. State 459 So.2d 1136 (Fla. 4th DCA 1984); Diamond v. State 436 So.2d 364 (Fla. 3rd DCA 1983); U.S. v. Day 789 F.2d 1217 (6th Cir. 1986); U.S. v. Castro-Ayon 537 F.2d 1055 (9th Cir. 1976). In State v. Delgado-Sanchez 497 So.2d 1199 (Fla. 1986) the Florida Supreme Court resolved one conflict between the district courts of appeal and adopted a “brightline” test where it held a statement given during a police interrogation cannot be a statement given in an “other proceeding”. Therefore a statement under oath during a police interrogation is not admissible under Section 90.801 (2)(a) Fla. Stat. See Delgado v. State 471 So.2d 74 (Fla. 3rd DCA 1985); Cf. Robinson v. State 455 So.2d 481 (Fla. 5th DCA 1984). See also Ellis v. State 622 So.2d 991 (Fla. 1993) (witness sworn statement to prosecutor inadmissible); Anderson v. State 574 So.2d 87 (Fla. 1991) (sworn statement to prosecutor inadmissible as substantive evidence but admissible to impeach). Kirkland v. State 509 So.2d 1105 (Fla. 1987) (sworn statement by victim for purpose of securing,

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search warrant inadmissible). Jennings v. State 512 So.2d 169 (Fla. 1987) (sworn pretrial motion inadmissible) and Gillis v. State 518 So.2d 962 (Fla. 3rd DCA 1988) (sworn statement of co-defendant made during a post-arrest interrogation which implicated defendant inadmissible) In State v. Green 667 So.2d 756 (Fla. 1995) the Florida Supreme Court held a discovery deposition of a child witness who recanted in court is inadmissible pursuant to Section 90.801 (2)(a) Fla. Stat., because the criminal procedure rules do not provide for the substantive use of a discovery deposition taken pursuant to Fla. Crim. P. 3 220.

See also State v. Moore 485 So.2d 1279 (Fla. 1986) State v. Green 667 So.2d 756 (Fla. 1995) and Beber v. State 887 So.2d 1248 (Fla. 2004). But also see Chambers v. State 504 So.2d 476 (Fla. 1st DCA 1987)

Any prior inconsistent statement is admissible to impeach regardless of whether it was given under oath. The requirements of oath is important only when the statement is offered as substantive evidence. A prior inconsistent statement that does not meet the requirements of Section 90.801 (2)(a) Fla. Stat. is admissible to impeach but is not admissible to prove the truth of the matter asserted.

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See In Re L.C. 947 So.2d 1240 (Fla. 2nd DCA 2007), Anderson v. State 574 So.2d 87 (Fla. 1991), and Santiago v. State 652 So.2d 485 (Fla. 5th DCA 1995) Prior Consistent Statements The general rule is when a witness testifies at trial neither that witness nor any other person may testify to prior statements by the witness that are consistent with the incourt testimony of the witness. The prior consistent statements are usually hearsay and inadmissible as substantive evidence unless an exception to the hearsay rule applies.

Davis v. State 694 So.2d 113 (Fla. 4th DCA 1997); Coluntino v. State 620 So.2d 244 (Fla. 3rd DCA 1993); McDonald v. State 578 So.2d 371 (Fla. 1st DCA 1991); Lamb v. State 357 So.2d 437 (Fla.2nd DCA 1978); Kelley v. State 486 So.2d 578 (Fla. 1986); Rodriguez v. State 609 So.2d 493 (Fla. 1992) cert denied, 510 U.S. 830, 114 S. Ct. 99, 126 L. Ed. 2d (1993); Keller v. State 586 So.2d 1238 (Fla. 5th DCA 1991)

Unless there is an applicable exception to the hearsay rule, prior consistent statements are admissible only when they are offered to rebut the attacks upon the credibility of a witness as specified in a Section 90.801 (2)(b) Fla. Stat.

Jenkins v. State So.2d 1017 (Fla. 1st DCA 1989); McElveen v. State 415 So.2d 746 (Fla. 1st DCA 1982); Watkins v. State 342 So.2b 1057 (Fla. 1st

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DCA 1977); Monday v. State 792 So.2d 1278 (Fla. 1st DCA 2001); Anderson v. State 574 So.2d 87 (Fla. 1991); Adufour v. State 495 So.2d 154 (Fla. 1986); Harris v. State 843 So.2d 856 (Fla. 2003); Mussdorf v. State 508 So.2d 1273 (Fla. 4th DCA 1987); Begley v. State 483 So.2d 70 (Fla. 4th DCA 1986); and Tome v. U.S. 513 U.S. 150, 115 S. Ct 696 (1995)

An allegation at trial that the testimony has been fabricated is not sufficient to provide for the admissibility of prior consistent statements. Whether these issues are injected in the case depends on the theory or examination of the adverse party under the facts of the particular case.

Hebel v. State 765 So.2d 143 (Fla. 2nd DCA 2000); and Bertram v. State 637 So.2d 258 (Fla. 2nd DCA 1994).

Pursuant to Section 90.105 Fla. Stat. the trial judge must determine as a preliminary question of fact whether the predicate for the admission of a prior consistent statement has been shown to exist for prior statements to be admissible under Section 90.801 (2)(b) Fla. Stat. It is not necessary a prior inconsistent statement be introduced so long as the necessary predicate exists. It is necessary the declarant testify at the trial and be subject to cross-examination concerning the prior statement.

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If a prior consistent statement contained in a writing is admissible under Section 90.801 (2)(b) Fla. Stat. only those portions of a prior statement that are consistent are admissible. Other portions of a prior written statement of the witness are not admissible by virtue of their inclusion in the same document as the prior consistent statement Alvin v. State 548 So.2d 1112 (Fla. 1989). Notwithstanding all of the above prior consistent statements pursuant to Section 90.801 (2)(b) are subject to a Section 90.403 Fla. Stat. balancing test. Kendrick v. State 632 So.2d 279 (Fla. 4th DCA 1994) Statements of Identification Section 90.801 (2)(c) Fla. Stat. provides when a witness identifies an individual before trial the out-of-court statements of identification made after the witness has perceived the individual are not hearsay.

State v. Freber 366 So.2d 426 (Fla. 1978); Rutherford v. State 902 So.2d 211 (Fla. 4th DCA 2005); Lewis v. State 777 So.2d 452 (Fla. 4th DCA 2001); Henry v. State 383 So.2d 320 (Fla. 5th DCA 1980); and U.S. v. Owens 484 U.S. 554, 108 S. Ct. 838 (1988)

There is no requirement the declarant identify the individual in court; furthermore the failure of the witness to repeat the identification in court does not affect the admissibility of evidence of the prior identification.

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Miller v. State 780 So.2d 277 (Fla. 3rd DCA 2001); Brown v. State 413 So.2d 414 (Fla. 5th DCA 1982); U.S. v. Cueto 611 F.2d 1056 (5th Cir. 1980); and U.S. v. Jarrad 754 F.2d 1451 (9th Cir. 1985)

If the person making the out-of-court identification does not testify during the trial evidence of the identification is not admissible.

Hayes v. State 581 So.2d 121 (Fla. 1991); Edwards v. State 967 So.2d 308 (Fla. 3rd DCA 2008); Valley v. State 860 So.2d 464 (Fla. 4th DCA 2003); Pedrosa v. State 781 So.2d 470 (Fla. 3rd DCA 2001), and Hall v. State 622 So.2d 1132 (Fla. 2nd DCA 1993)

Additionally a prior statement of identification is not admissible when the witness is not asked about the identity at trial.

Deas v. State 988 So.2d 1271 (Fla. 5th DCA 2008) and Neilson v. State 713 So.2d 1110 (Fla. 2d DCA 1998).

There is no requirement the identification occur immediately after the event or commission of a crime but it should be made near the time the declarant perceived the individual identified.

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Henry v. State 700 So.2d 171 (Fla. 4th DCA 1997). Cf. Liscinsky v. State 700 So.2d 171 (Fla. 4th DCA 1997)

The person making the identification must do so based on his or her personal knowledge of the individual identified and not upon statements of another. There is no requirement the identifying witness perceive or be brought into contact with the person identified on a second occasion. When a person gives an out-of-court description of another, rather than identifying a specific individual, the out-of-court statement is not admissible under Section 90.801 (2)(c) Fla. Stat.

Puryear v. State 810 So.2d 901 (Fla. 2002); Swafford v. State 533 So.2d 270 (Fla. 1988); Davis v. State 694 So.2d 113 (Fla. 4th DCA 1967).

Only identifications made by a victim or a witness to an event or criminal episode are admissible under Section 90.801 (2)(e) Fla. Stat. the identification may be made by either a personal or photographic identification. Hoar v. State 938 So.2d 451 (Fla. 2006).

Section 90.801 (c)(2) Fla. Stat. also makes admissible the testimony of a witness who was present at the time of the identification so long as the person making the identification testifies during the trial and is subject to cross-examination concerning the identification.

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Perry v. State 817 So.2d 985 (Fla. 4th DCA 2002); Ford v. State 678 So.2d 632 (Fla. 4th DCA 1996); and Zimmerman v. Create Bay Hotel and Casino, Inc. 683 So.2d 1160 (Fla. 3rd DCA 1996).

III.

Hearsay Exceptions

Section 90.803 Fla. Stat. provides for twenty-four (24) exceptions to the hearsay rule which are admissible whether or not the declarant is available. In contrast Section 90.804 Fla. Stat. provides for five (5) additional exceptions to the hearsay rule only if the declarant is unavailable. The general rule excluding hearsay evidence is restated in Section 90.802 Fla. Stat. When evidence falls within the definition of hearsay set forth in Section 90.801 Fla. Stat. the evidence is inadmissible See Anderson v. State 655 So.2d 1118 (Fla. 1995). If out-of-court statements are not hearsay, they are not barred by Section 90.802, Fla. Stat. In providing a general exclusion for hearsay evidence, Section 90.802 Fla. Stat. recognize is some hearsay evidence is admissible. The Florida Supreme Court through the exercise of its rule-making authority has provided for the admission of hearsay testimony in some instances. As an example Fla. R. Civ. P. 1.330 (a) 3 provides for the admissibility at trial of testimony taken by deposition when the witness whose testimony was taken is more than 100 miles from the place of trial or hearing.

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Additionally there are also exceptions to the hearsay rule in both the evidence code and throughout the Florida Statutes. For example Section 525.02 Fla. Stat. provides a properly verified certificate of a state chemist relating to the analysis of petroleum products is admissible as prima facie evidences of its contents. Even though evidence is not barred by the hearsay rule because it falls within an enumerated exception, the evidence may be inadmissible because it violates either a criminal defendant’s right to confront witnesses or because it violates a criminal defendant’s due process rights under the Fourteenth Amendment. If the declarant testifies during the trial and is subject to cross-examination confrontation is satisfied with respect to an out-of-court statement made by the witness which is admissible under a hearsay exception.

See Crawford v. Washington 541 U.S. 36, 124 S. Ct. 1354 (2006); U.S. v. Owens 484 U.S. 554, 108 S. Ct. 838 (1988); State v. Lopez 974 So.2d 340 (Fla. 2008); State v. Pinault 933 So.2d 1287 (Fla. 4th DCA 2006); State v. Miller 918 So.2d 350 (Fla. 1st DCA 2005); and Someruell v. State 883 So.2d 836 (Fla. 5th DCA 2004).

No additional examination of the reliability of an out-of-court statement made by a witness who testifies at the trial which is admissible under a hearsay exception is required.

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See Crawford , supra, Lopez, supra and Davis v. Washington 126 S. Ct. 2266 (2006); State v. Lopez 974 So.2d 340 (Fla. 2008); Sanon v. State 978 So.2d 275 (Fla. 4th DCA 2008), and Paraison v. State 980 So.2d 1134 (Fla. 3rd DCA 2008).

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I NOTICE IT’S JUDICIAL- OR IS IT? A summary of Judicial Notice. I. Judicial Notice Section 90.201, Fla. Stat. concerns matters which must be judicially noticed by the Court. Taking judicial notice of a fact does not dispense with the evidence meeting the requirements of the other exclusionary rules. For example, a document which is judicially noticed must be logically probative of a material fact and satisfy a Section 90.403, Fla. Stat. balancing, Wilson v. State 666 So.2d 979 (Fla. 1st DCA 1996) and Allstate Ins. Co. v. Greyhound Rent-A-Car Inc. 586 So.2d 482 (Fla. 4th DCA 1991). Generally judicial notice may not be used as a method of avoiding the application of the hearsay rule which excludes particular out of court statements that are offered to prove the truth of the matter asserted. Stull v. State 762 So.2d 870 (Fla. 2000); Davis v. State 831 So.2d 792 (Fla. 5th DCA 2002) Cf. Penske Truck Leasing Co. LP v. Moore, 702 So. 2d 1295 (Fla. 4th DCA 1997) In contrast, Section 90.202, Fla. Stat. concerns matters the court may judicially notice. Furthermore, the procedure the court must follow when judicial notice of a fact is taken is set forth in Section 90.203, Fla. Stat. and Section 90.204, Fla. Stat. If counsel

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complies with the procedures in Section 90.203, Fla. Stat., the court is required to take judicial notice of the matters set forth in Section 90.202, Fla. Stat. If a party does not give timely notice to the adverse parties of a request the court judicially notice a fact Section 90.204 (1) Fla. Stat. permits the court to take judicial notice if counsel shows good cause for not having given timely written notice. Under Section 90.204 (1) Fla. Stat., both parties must be afforded a reasonable opportunity to present information as to (1) the propriety of taking judicial notice- i.e. whether this is a matter that can be judicially noticed under the evidence code- and (2) the nature of the matter noticed- i.e. whether the matter is what the offering party represents it to be. See Maradie v. Maradie 680 So.2d 538 (Fla. 1st DCA 1996) and In Re Forfeiture of Forty-Four Thousand, Six Hundred and Forty-Five dollars ($44,645.00) in U.S. currency 634 So.2d 710 (Fla. 1st DCA 1994); and Craig v. Craig 982 So.2d 724 (Fla. 1st DCA 2008). Pursuant to Section 90.205, Fla. Stat. when a court denies a request to take judicial notice the court shall inform the parties at the earliest practical time in order to give counsel an opportunity to introduce proof of fact. Additionally the court must indicate same on the record. Once the court has decided to judicially notice a fact, that determination should be final and counsel should not be able to introduce evidence to contradict the fact. However pursuant to Section 90.206 Fla. Stat. the court may instruct the jury during trial to factually accept a matter judicially noticed.

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It must be remembered Section 90.206 Fla. Stat. applies to both criminal and civil cases. In this regard Florida appellate Courts have continually taken judicial notice of facts comprising essential elements of crimes without subsequently giving a defendant the opportunity to contradict the fact. Fuller v. State 159 Fla. 200, 31 So.2d 259 (1947); Tudela v. State 212 So.2d 387 (Fla. 3rd DCA 1968) writ quashed, 221 So.2d 143 (Fla. 1969) and cert denied 396 U.S. 969, 90 S. Ct. 453 (1969); and Mitchum v. State 251 So.2d 298 (Fla. 1st DCA 1971). In contrast, Hernandez v. State 713 So.2d 1120 (Fla. 3rd DCA 1998) and Graves v. State 587 So.2d 633 (Fla. 3rd DCA 1991). Pursuant to Section 90.207, Fla. Stat. the action of a court in taking judicial notice or in deciding not to take judicial notice is not binding upon that same court in a later proceeding. Additionally pursuant to this section an appellate court can judicially notice adjudicative facts on appeal- See Jacksonville Authority v. Department of Revenue 486 So.2d 1354 (Fla. 1st DCA 1986) review denied 492 So.2d 1331 (Fla. 1986) and MacNamara v. Kissimmee River Valley Sportsmans’ Ass’n 648 So.2d 155 (Fla. 2nd DCA 1994).

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Glossary

SECTION 90.201- MATTERS WHICH MUST BE JUDICIALLY NOTICED

A court shall take judicial notice of: 1. Decisional, constitutional, and public statutory law and resolutions of the Florida Legislature and the Congress of the United Stated. 2. Florida rules of court that have statewide application, its own rules, and the rules of United States courts adopted by the United States courts adopted by the United States Supreme Court. 3. Rules of court of the United States Supreme Court and of the United States Courts of Appeal.

SECTION 90.202- MATTERS WHICH MAY BE JUDICIALLY NOTICED A court may take judicial notice of the following matters, to the extend that they are not embraced within s. 90.201:

(1) Special, local, and private acts and resolutions of the Congress of the United States and of the Florida Legislature. (2) Decisional, constitutional, and public statutory law of every other state, territory, and jurisdiction of the United States.

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(3) Contents of the Federal Register. (4) Laws of foreign nations and of an organization of nations. (5) Official actions of the legislative, executive, and judicial departments of the United States and of any state, territory, or jurisdiction of the United States. (6) Records of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States. (7) Rules of court of any court of this state or of any court of record of the United States or of any other state, territory, or jurisdiction of the United States. (8) Provisions of all municipal and county charters and charter amendments of this state, provided they are available in printed copies or as certified copies. (9) Rules promulgated by governmental agencies of this state which are published in the Florida Administrative Code or in bound written copies. (10) Duly enacted ordinances and resolutions of municipalities and counties located in Florida, provided such ordinances and resolutions are available in printed copies or as certified copies. (11) Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court. (11) Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court.

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(12) Facts that are not subject to dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned. (13) Official seals of governmental agencies and departments of the United States and of any state, territory, or jurisdiction of the United States.

SECTION 90.203- COMPULSORY JUDICIAL NOTICE UPON REQUEST

A court shall take judicial notice of any matter in s. 90.202 when a party requests it and: (1) Gives each adverse party timely written notice of the request, proof of which is filed with the court, to enable the adverse party to prepare to meet the request. (2) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.

SECTION 90.204- DETERMINATION OF PROPRIETY OF JUDICIAL NOTICE AND NATURE OF MATTER NOTICED.

(1)

When a court determines upon its motion that judicial notice of a matter should be taken or when a party requests such notice and shows good cause for not complying with s. 90.203(1), the court shall afford each party reasonable

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opportunity to present information relevant to the propriety of taking judicial notice and to the nature of the matter noticed.

(2)

In determining the propriety of taking judicial notice of a matter or the nature thereof, a court may use any source of pertinent and reliable information, whether or not furnished by a party, without regard to any exclusionary rule except a valid claim of privilege and except for the exclusions provided in s. 90.403.

(3)

If a court resorts to any documentary source of information and its source a part of the record in the action and shall afford each party reasonable opportunity to challenge such information, and to offer additionally information, before judicial notice of the matter is taken.

SECTION 90.205- DENIAL OF A REQUEST FOR JUDICIAL NOTICE

Upon request of counsel, when a court denies a request to take judicial notice of any matter, the court shall inform the parties at the earliest, practicable time and shall indicate for the records that it has been denied the request.

SECTION 90.206- INSTRUCTING JURY ON JUDICIAL NOTICE The court may instruct the jury during the trial to accept as a fact, a matter judicially noticed.

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SECTION 90.207- JUDICIAL NOTICE BY TRIAL COURT IN SUBSEQUENT PROCEEDINGS

The failure or refusal of a court to take judicial notice of a matter does not preclude a court from taking judicial notice of the matter in subsequent proceedings, in accordance with the procedure specified in ss. 90.201-90.206.

SECTION 90.801- FLA. STAT.

(1) The following definitions apply under this chapter:

(a) A “statement” is: 1. An oral or written assertion; or 2. Nonverbal conduct of a person if it is intended by the person as an assertion. (b) A “declarant” is a person who makes a statement. (c) “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. (2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:

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(a) Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (b) Consistent with the declaran’ts testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication; or (c) One of identification of a person made after perceiving the person

SECTION 90.802- HEARSAY RULE

Except as provided by statute, hearsay evidence is inadmissible.

SECTION 90.803- HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL

The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness: 1. Spontaneous Statement. A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or

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condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness. 2. Excited Utterance. A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. 3. The Existing Mental, Emotion, or Physical Condition. (a) A statement of the declarant’s then existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to: 1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action. 2. Prove or explain acts of subsequent conduct of the declarant. (b) However, this subsection does not make admissible: 1. An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant’s will. 2. A statement made under circumstances that indicate its lack of trustworthiness. 4. Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts,

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which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment. 5. Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have bee made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party. 6. Records of Regularly Conducted Business Activiy. (a) A memorandum, report, record, or data, compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by or from information transmitted by, a person with knowledge, if kept in the course of regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution,

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association, profession, occupation, and calling of every kind, whether or not conducted for profit. (b) No evidence in the form of an opinion or diagnosis is admissible under paragraph (a) unless such opinion or diagnosis is admissible under ss. 90.701-90.705 if the person whose opinion is recorded were to testify to the opinion directly. (c) A party intending to offer evidence under paragraph (a) by means of a certification or declaration shall serve reasonable written notice of that intention upon every other party and shall make the evidence available for inspection sufficiently in advance of its offer in evidence to provide to any other party a fair opportunity to challenge the admissibility of the evidence. If the evidence is maintained in a foreign country, the party intending to offer the evidence must provide written notice of that intention at the arraignment or as soon after the arraignment as is practicable or, in a civil case, 60 days before the trial. A motion opposing the admissibility of such evidence must be made by the opposing party and determined by the court before trial. A party’s failure to file such a motion before trial constitutes a waiver of objection to the evidence, but the court for good cause shown may grant relief from the waiver. 7. Absence of Entry in Records of Regularity Conducted Activity. Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, of a regularly conducted activity to prove the nonoccurrence or

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nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances show lack of trustworthiness. 8. Public Records and Reports. Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matter which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354. 9. Records of Vital Statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if a report was made to a public office pursuant to requirements of law. However, nothing in this section shall be construed to make admissible any other marriage of any party to any cause of action except for the purpose of impeachment as set forth in s. 90.610. 10. Absence of Public Record or Entry. Evidence in the form of a certification in accord with s. 90.902, or in the form of testimony, that diligent search failed to disclose a record, a report, statement, or data compilation or entry, when offered to prove the absence of the record, report, statement, or data compilation or the non-occurrence report, statement, or data compilation would regularly have been made and preserved by a public office and agency.

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11. Records of Religious Organizations. Statements of births, marriages, divorces, deaths, parentage, ancestry, relationship by blood or marriage, or other similar facts of personal or family history contained in a regularly kept record of a religious organization. 12. Marriage, Baptismal, and Similar Certificates. Statements of facts contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, when such statement was certified by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and when such act or within a reasonable time thereafter. 13. Family Records. Statements of fact concerning personal or family history in family Bibles, charts, engravings in rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like. 14. Records of Documents Affecting an Interest in Property. The record of a document purporting to establish or affect an interest in property, as proof of the contents of the original recorded or filed document and its execution and delivery by each person by whom its supports to have been executed, if the record is a record of a public office and an applicable statute authorized the recording or filing of the document in the office. 15. Statements in Documents Affecting an Interest in Property. A statement contained in a document purporting to establish or affect an interest in property, if the matter stated was relevant to the purpose of the document, unless dealings

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with the property since the document was made have been inconsistent with the truth or the statement or the purport of the document. 16. Statements in Ancient Documents. Statements in a document is existence 20 years or more, the authenticity of which is established. 17. Market Reports, Commercial Publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations if, in the opinion of the court, the sources of information and method of preparation were such as to justify their admission. 18. Admissions. A statement that is offered against a party and is: (a) His own statement in either an individual or a representative capacity; (b) A statement of which he had manifested an adoption or belief in its truth; (c) A statement by a person specifically authorized by him to make a statement concerning the subject; (d) A statement by his agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship; or (e) A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either

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before the introduction of any evidence or before evidence is admitted under this paragraph. 19. Reputation Concerning Personal or Family History. Evidence of reputation: (a) Among members of a person’s family by blood, adoption, or marriage; (b) Among a person’s associates; or (c) In the community, concerning a person’s birth, adoption, marriage, divorce, death, relationship by blood, adoption, marriage, ancestry, or other similar fact of personal or family history. 20. Reputation Concerning Boundaries or General History. Evidence of reputation: (a) In a community, arising before the controversy about the boundaries of, or customs affecting lands in, the community. (b) ABouth events of general history which are important to the community, state, or nation where located. 21. Reputation as to Character. Evidence of reputation of a person’s character at a civil trial, when used in a retrial of said trial involving identical parties and the same facts. 22. Former Testimony. Former testimony given by the declarant at a civil trial, when used in a retrial of said trial involving identical parties and the same facts. 23. Hearsay Exception; Statement of Child Victim. (a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-

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court statement made by a child victim with a physical, mental, emotional, or developmental age of 11 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if: 1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the child victim, and any other factor deemed appropriated; 2. The child either: a. Testifies; or b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child’s participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804 (1).

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(b) In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the child’s statement, the time at which the statement was made, the circumstances surrounding the statement, which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement. (c) The court shall make specific findings of fact, on the records, as to the basis for its ruling under this subsection. 23. Hearsay Exception; Statement of Elderly Person or Disabled Adult (a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-ofcourt statement made by an elderly person or disabled adult, as defined in s. 825.101, describing any act of abuse or neglect, any act of exploitation, the offense of battery or aggravated battery or assault or aggravated assault or sexual battery, or any other violent act on the declarant elderly person or disabled adult, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if: 1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards or reliability. In making its determination, the court may consider the mental and physical age and maturity of the

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elderly person or disabled adult the nature and duration of the abuse or offense, the relationship of the victim to the offender, the reliability of the assertion, the reliability of the elderly person or disabled adult, and any other factor deemed appropriate; and 2. The elderly person or disabled adult either: (a) Testifies; or (b) Is unavailable as a witness, provided that there is corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the elderly person’s or disabled adult’s participation in the trial or proceeding would result in a substantial likelihood or severe emotional, mental, or physical harm, in addition to findings pursuant to s. 90.804(1). (b) In a criminal action, the defendant shall be notified no later than 10 days before the trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the elderly person’s or disabled adult’s statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement. (c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.

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SECTION 90.804- HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE

(1) Definition of Unavailability. “Unavailability as a witness” means that the declarant: (a) Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; (b) Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; (c) Has suffered a lack of memory of the subject matter of his or her statement so as to destroy the declarant’s effectiveness as a witness during the trial; (d) Is unable to be present or to testify at the hearing because of death or because of then existing physical or mental illness or infirmity; or (e) Is absent from the hearing, and the proponent of a statement as been unable to procure the declarant’s attendance or testimony by process or other reasonable means. However, a declarant is not unavailable as a witness if such exemption, refusal, claim of lack of memory, inability, to be present, or absence is due to the

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procurement or wrongdoing of the party who is the proponent of his or her statement in preventing the witness from attending or testifying.

(2) Hearsay Exceptions. The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness: (a) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interesy, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. (b) Statement under belief of impending death. In a civil or criminal trial, a statement made by a declarant while reasonably believing that his or her death was imminent; concerning the physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death. (c) Statement against interest. A statement which, at the time of its making, was so far contrary to the declarant’s pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so

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that a person in the declarant’s position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. (d) Statement of personal or family history. A statement concerning the declarant’s own birth, adoption, marriage, divorce, parentage, ancestry, or other similar fact of personal or family history, including relationship by blood, adoption, or marriage, even though the declarant had no means of acquiring personal knowledge of the matter stated. (e) Statement by deceased or ill declarant similar to one previously admitted. In an action or proceeding brought against the personal representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against the assignee, committee, or guardian of a mentally incompetent person, when a declarant is unavailable as provided in paragraph (1)(d), a written or oral statement made regarding the same subject matter as another statement made by the declarant that has previously been offered by an adverse party and admitted in evidence.

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Notes