Prove My Florida Case

 

 

Prove My Florida Case is my blog discussing Florida appellate, evidentiary, and trial issues and perspectives.  This blog focuses on issues that are important to proving YOUR case! 

 

 

Fraud claims are hard to prove. Any fraud claim or claim predicated on a misrepresentation is an intentional tort; therefore, it requires proof that the defendant had the intent to induce the plaintiff to act on a misrepresentation and the plaintiff actually relied on and acted on the misrepresentation. While fraud-type claims are perhaps commonly […]

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Copyright ©  [Proving ALL of the Elements of a Fraudulent or Negligent Misrepresentation Claim], All Right Reserved. 2017.
Author: David Adelstein

There are times I hear that because the “bad” appellate case is in another appellate district compared to the appellate district where my case is located, that “bad” case is not binding. This sentiment is not necessarily true, particularly if there are no interdistrict conflicting opinions relating to the “bad” appellate case (and, more appropriately, […]

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Copyright ©  [Is the "Bad" Appellate Case Binding or Persuasive?], All Right Reserved. 2017.
Author: David Adelstein

When a party files a motion that the opposing party perpetuated a fraud on the court, they are looking for the court to sanction the opposing party, with the harsh remedy of striking the opposing party’s pleadings.  Fraud on the court is described as: The requisite fraud on the court occurs where it can be […]

The post Proving Fraud on the Court with Clear and Convincing Evidence appeared first on .



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Copyright ©  [Proving Fraud on the Court with Clear and Convincing Evidence], All Right Reserved. 2017.
Author: David Adelstein

An attorney’s opportunity to question prospective jurors (the jury venire) is an important part of the trial process. This is known as voir dire. Attorneys want to ask tailored questions to determine those persons in the venire that should be stricken for cause, those for which they should exercise a peremptory challenge, and those, quite […]

The post Striking / Excusing a Prospective Juror for Bias during Voir Dire appeared first on .



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Copyright ©  [Striking / Excusing a Prospective Juror for Bias during Voir Dire], All Right Reserved. 2017.
Author: David Adelstein

In an earlier article, I talked about the election of remedies doctrine. The purpose of this election of remedies doctrine is to preclude the plaintiff from obtaining a windfall by double-recovering its damages under alternative (or mutually exclusive) theories of liability.  If a plaintiff could double recover on mutually exclusive theories of liability based on […]

The post Election of Remedies Doctrine and Claims for Specific Performance and Breach of Contract appeared first on .



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Copyright ©  [Election of Remedies Doctrine and Claims for Specific Performance and Breach of Contract], All Right Reserved. 2017.
Author: David Adelstein

In a great victory for those handling difficult contingency fee disputes (particularly contingency fee disputes dealing with economic damages, such as me), the Florida Supreme Court held that the contingency fee multiplier is not to be applied only in the rare and exceptional case. Oh no! Had the Court entered such a ruling, this would have […]

The post The Contingency Fee Multiplier is NOT just for the Rare and Exceptional Dispute appeared first on .



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Copyright ©  [The Contingency Fee Multiplier is NOT just for the Rare and Exceptional Dispute], All Right Reserved. 2017.
Author: David Adelstein

Arbitration is a creature of contract. If a contract requires arbitration that means the parties are required to arbitrate their disputes as opposed to litigate their disputes. Instead of their being a judge or jury, there will be an arbitrator. There are three considerations when determining whether a dispute is subject to arbitration: 1) Is there […]

The post Arbitration is an Appealable Non-Final Order appeared first on .



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Copyright ©  [Arbitration is an Appealable Non-Final Order], All Right Reserved. 2017.
Author: David Adelstein

Punitive damages can be an important component of a plaintiff’s damages. No doubt about it. No defendant wants the jury to be able to determine whether to award these damages or the quantum of punitive damages associated with its/his/her gross negligence or intentional misconduct.  Punitive damages can be a game changer. The objective behind punitive […]

The post Strictly Complying with Procedural Requirements when Moving to Amend to Add Punitive Damages appeared first on .



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Copyright ©  [Strictly Complying with Procedural Requirements when Moving to Amend to Add Punitive Damages], All Right Reserved. 2017.
Author: David Adelstein

  In an earlier posting, I discussed the difference between a motion for rehearing and motion for reconsideration.   From that posting, you know that a motion for rehearing is a post-trial motion and, in particular, a motion that applies post-judgment. A properly filed motion for rehearing will toll the time to file an appeal.  There […]

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Copyright ©  [Abandonment of Post-Trial Motions through Notice of Appeal? Not Anymore...], All Right Reserved. 2017.
Author: David Adelstein

In a big case for employers that rely on referrals for the viability of their business, the Florida Supreme Court held that referral sources may be a protected legitimate business interest under Florida Statute s. 542.335 based on the context and proof.  Hence, referral sources can be protected under a non-compete / non-solicitation agreement that prohibits […]

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Copyright ©  [Referral Sources can be a Protected Legitimate Business Interest], All Right Reserved. 2017.
Author: David Adelstein

Motions titled rehearing and reconsideration are routinely used interchangeably, as if there is no difference between the name “rehearing” and the name “reconsideration. There is a difference though. A motion for a rehearing is distinct from a motion for reconsideration and this distinction is key. Not understanding the difference between a motion for rehearing and […]

The post Motion for Rehearing or Reconsideration: What is the Difference? appeared first on .



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Copyright ©  [Motion for Rehearing or Reconsideration: What is the Difference?], All Right Reserved. 2017.
Author: David Adelstein

The collateral source rule is the source of unnecessary confusion. This rule is aimed at preventing an injured-plaintiff from having its cake and eating it too – from receiving a windfall from the defendant-tortfeasor based on compensation the plaintiff received from collateral sources. The collateral source rule allows an injured plaintiff to present all of […]

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Copyright ©  [Collateral Source Rule - Prohibiting an Injured Plaintiff from having Its Cake and Eating It too], All Right Reserved. 2017.
Author: David Adelstein

Caveat Emptor.  Buyer Beware!!!! This is a doctrine that applies to commercial property transactions. Watch out and do your due diligence when entering into a commercial real estate transaction. If you do not, the doctrine of caveat emptor will apply which puts the onus on you, the buyer, to discover material facts relating to the […]

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Copyright ©  [Caveat Emptor = Buyer Beware = Watch Out!], All Right Reserved. 2017.
Author: David Adelstein

Sometimes, a trial court issues a pre-trial order on a discovery issue that a party claims causes it irreparable harm.   In this situation, the only basis to appeal the pre-trial discovery order is through a petition for writ of certiorari, as recently explained by the Second District Court of Appeal: A party seeking review of […]

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Copyright ©  [Writ of Certiorari to Remedy Pre-Trial Discovery Order], All Right Reserved. 2017.
Author: David Adelstein

Have you been duped into procuring something through misleading advertising? There is a Florida Statute that provides a civil cause of action for misleading advertising. Florida Statute s. 817.41 provides a statutory cause of action for misleading advertising that gives the prevailing party a basis to recover their attorney’s fees in addition to a potential […]

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Copyright ©  [Florida Statutory Cause of Action for Misleading Advertisement], All Right Reserved. 2017.
Author: David Adelstein

Many non-final orders are NOT immediately appealable. The immediate right to appeal non-final orders are enumerated in Florida Rule of Appellate Procedure 9.130. (And, prior postings have discussed the burden in moving for a writ of certiorari based on a non-final order.) Fair or unfair. These are the rules that govern appellate proceedings. When you […]

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Copyright ©  [Not All Non-Final Orders are Immediately Appealable], All Right Reserved. 2017.
Author: David Adelstein

The nonperformance of conditions precedent must be pled with particularity. Florida Rule of Civil Procedure 1.120(c) provides: Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or occurred. A denial of performance or occurrence shall be made specifically and with […]

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Copyright ©  [Properly Pleading the Affirmative Defense of the Nonperformance or Nonoccurrence of Conditions Precedent], All Right Reserved. 2017.
Author: David Adelstein

I am sure you have an insurance policy…some type of policy. An automobile liability policy. A commercial general liability policy. A professional liability policy. A property insurance policy.   A directors and officers liability policy. A workers compensation insurance policy. There are many types of insurance policies. I am sure you have some insurance policy to […]

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Copyright ©  [Insurance Policy Construction is a Question of Law], All Right Reserved. 2017.
Author: David Adelstein

Many rules of civil procedure are liberally construed to prevent the  “oops!” or “gotcha!” tactic if a rule is not perfectly complied with. Courts are hesitant to allow another party to prevail merely because its opposition committed a technical or procedural error. Technical wins are generally not favored, as long as there is a reasonable […]

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Copyright ©  [Courts do Not Favor the Technical (Oops!) Wins], All Right Reserved. 2017.
Author: David Adelstein

We think of the word “conspiracy” in the criminal context. A criminal conspiracy. Sounds bad. Real bad. But, there is a cause of action in the civil context called “civil conspiracy.” Granted, this is a fact-based claim that is challenging to prove at trial, but nevertheless, such a claim exists if you can prove that […]

The post Civil Conspiracy – Not Just a Claim in the Criminal Context appeared first on .



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Copyright ©  [Civil Conspiracy - Not Just a Claim in the Criminal Context], All Right Reserved. 2017.
Author: David Adelstein