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! 

 

 

When it comes to disability discrimination, there are two key federal statutes.  The first is the American with Disabilities Act (ADA) and the second is the Rehabilitation Act.  Both statutes are governed under analogous standards and are designed at prohibiting discrimination against qualified individuals with disabilities.  There are numerous federal cases discussing both the ADA […]

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Copyright ©  [Disability Discrimination: Synopsis], All Right Reserved. 2019.
Author: David Adelstein

Arbitration, as a method of dispute resolution, is a creature of contract.  If you prefer to arbitrate disputes as opposed to litigating disputes in court, then you want a properly drafted arbitration provision in your contract.  If you want all disputes arising out of or relating to your contract to be arbitrated, then you want this specified […]

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Copyright ©  [Arbitration Clause - Narrow or Broad], All Right Reserved. 2019.
Author: David Adelstein

In a recent article I discussed the importance of an expert’s qualifications — hiring an expert witness to render an opinion within his or her qualifications (training, knowledge, or expertise).  If an expert is not qualified to render an opinion, a trial court has the discretion to preclude that witness from offering the opinion at […]

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Copyright ©  [Abuse of Discretion Standard of Review when Expert Deemed Unqualified], All Right Reserved. 2019.
Author: David Adelstein

While this hearsay exception is predominantly applicable in criminal trials, it is still worth mentioning the then-existing state of mind hearsay exception.  This is a hearsay exception where hearsay is admissible, not to prove the truth of the matter asserted by a declarant (the person that made the out-of-court statement), but the declarant’s then-existing state of […]

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Copyright ©  [Then-Existing State of Mind Hearsay Exception], All Right Reserved. 2019.
Author: David Adelstein

Certain employment contracts will contain non-solicitation clauses.  Such clauses may be important if a company hires an employee for a specific project or purpose. Language may include that the employee agrees that she/he will NOT solicit employment with any other company associated with the project or purpose during the employment or a certain post-employment period. […]

The post Non-Solicitation Agreements / Clauses and Proactively Soliciting Employment appeared first on .



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Copyright ©  [Non-Solicitation Agreements / Clauses and Proactively Soliciting Employment], All Right Reserved. 2019.
Author: David Adelstein

While there are times I will serve a proposal for settlement to create an argument to recover attorney’s fees, I always tell clients proposals for settlement create nothing more than an argument.  In other words, you cannot bank on actually recovering attorney’s fees because of conflicting case law or case law that finds reasons to invalidate […]

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Copyright ©  [Proposals for Settlement ONLY Apply to Claims for Monetary Relief], All Right Reserved. 2019.
Author: David Adelstein

In a prior article, I discussed the Bert J. Harris, Jr., Private Property Rights Protection Act.   This Act is designed to provide statutory protection to a property owner when governmental action inordinately burdens (directly restricts or limits) the owner’s use of their property without the governmental action amounting to a taking.  Vale v. Palm Beach […]

The post Must be a “Property Owner” to Avail Yourself of the Bert J. Harris, Jr. Private Property Rights Protection Act appeared first on .



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Copyright ©  [Must be a "Property Owner" to Avail Yourself of the Bert J. Harris, Jr. Private Property Rights Protection Act], All Right Reserved. 2019.
Author: David Adelstein

During a bench trial, the defendant moved for an involuntary dismissal after the plaintiff’s case-in-chief.  The defendant argued the plaintiff had no standing.  The trial court denied the motion and a judgment was ultimately entered in favor of the plaintiff.  The defendant appealed.  On appeal, the appellate court reviews on a de novo standard of […]

The post Involuntary Dismissal should have been Granted because Damages Rested with LLC and Not Its Member appeared first on .



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Copyright ©  [Involuntary Dismissal should have been Granted because Damages Rested with LLC and Not Its Member], All Right Reserved. 2019.
Author: David Adelstein

There are two competing tests for a trial court to determine the admissibility of reliable expert testimony / opinions.  One method is known as the Daubert test.  The other as the Frye test.  Both are named after respective cases.    The Daubert test is used in federal court.  The Frye test was used in Florida until 2013 when the Florida Legislature […]

The post The Less Stringent Frye Test is Baaaaack to Determine the Admissibility of Expert Testimony appeared first on .



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Copyright ©  [The Less Stringent Frye Test is Baaaaack to Determine the Admissibility of Expert Testimony], All Right Reserved. 2019.
Author: David Adelstein

If you file a frivolous motion or pleading: BEWARE.  Appellate courts are taking seriously frivolous filings. Frankly, they should!   In a recent case, Mark W. Rickard, P.A. d/b/a Law Guard v. Nature’s Sleep Factory Direct, LLC, 43 Fla.L.Weekly D2438b (Fla. 4th DCA 2018), a plaintiff voluntarily dismissed its lawsuit prior to trial.  The defendant […]

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Copyright ©  [If You File a Frivolous Motion or Pleading: BEWARE], All Right Reserved. 2019.
Author: David Adelstein

Not everything a potential judgment debtor does constitutes a fraudulent transfer to avoid anticipated collection efforts from a judgment creditor.  This does not mean arguments cannot and should not be made.  It just means that just because a potential judgment debtor does something does not automatically translate into a fraudulent transfer. In a recent post-judgment […]

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Copyright ©  [Not Everything a Potential Judgment Debtor Does Constitutes a Fraudulent Transfer], All Right Reserved. 2019.
Author: David Adelstein

Arbitration is a creature of contract.  This means if you are going to arbitrate a dispute, as opposed to litigating a dispute, there must be an agreement to arbitrate.  However, whether a dispute should be arbitrated pursuant to the terms of the contract is an area that has been heavily litigated for a couple of […]

The post A Party may Not Expand the Scope of Judicial Review of an Arbitration Clause appeared first on .



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Copyright ©  [A Party may Not Expand the Scope of Judicial Review of an Arbitration Clause], All Right Reserved. 2019.
Author: David Adelstein

  What is a spoliation of evidence claim?  Let’s find out… The recent decision in Amerisure Insurance Company v. Rodriguez, 43 Fla.L.Weekly D2225b  (Fla. 3d DCA 2018) involved a case where an employee was injured.  While he was collecting worker’s compensation benefits, he sued the the party responsible for his injuries in a premise liability […]

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Copyright ©  [Spoliation of Evidence Claim Against Third-Party], All Right Reserved. 2019.
Author: David Adelstein

In an earlier article, I wrote how economic damages MUST be supported by substantial competent evidence.  In a recent case, Levy v. Ben-Shmuel, 43 Fla.L.Weekly D2229a (Fla. 3d DCA 2018), a plaintiff, after a bench trial, recovered a judgment against a defendant that included money damages associated with a claim for conversion.  During trial, and […]

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Copyright ©  [Appealing Correct Measure of Damages], All Right Reserved. 2019.
Author: David Adelstein

Economic damages must be supported by substantial competent evidence.  Stated differently, economic damages cannot be speculative and the amount of the damages must be quantifiable.  Putting on speculative, unquantifiable damages at trial can be fatal to a claim because damages should be the most important part of a claim.  If damages cannot be proven, there […]

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Copyright ©  [Economic Damages Must be Based on Competent Substantial Evidence], All Right Reserved. 2019.
Author: David Adelstein

I recently discussed the defense of mitigation of damages as it applies to contract cases.  An issue dealt with whether an owner failed to mitigate his damages after his contractor walked off the job and breached the construction contract.  In the case referenced in the article, the trial court did not award the owner certain […]

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Copyright ©  [Quick Note: Competent Substantial Evidence to Support Mitigation of Damages], All Right Reserved. 2019.
Author: David Adelstein

You cannot sue someone for unjust enrichment (or quantum meruit) if there is a contract between the parties.  You can sue them for breach of contract; but you cannot try to circumvent the parameters of the contract by suing them for unjust enrichment (an equitable quasi-contract theory of liability).   For example, in Sterling Breeze […]

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Copyright ©  [You Can't Sue Someone for Unjust Enrichment when there is a Contract], All Right Reserved. 2019.
Author: David Adelstein

Owners of real property are oftentimes concerned about the prospect of premise liability claims when people are invited onto their property.  What happens if an invitee, such as a business invitee, gets hurt on the owner’s premises? What duty, in particular, does the owner of the real property owe to invitees?  The owner or occupier […]

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Copyright ©  [Premise Liability Claims and Duties of Owners to Invitees], All Right Reserved. 2019.
Author: David Adelstein

A recent appellate decision came out regarding contingency fee multipliers–the incentive for taking a case on contingency.   I included a thorough discussion on the requirements establishing a contingency fee multiplier here.  Check out this discussion that goes into establishing reasonable attorney’s fees and then the contingency fee multiplier. Notably, in this case, the appellate […]

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Copyright ©  [Incentive for Taking Case on Contingency - the Contingency Fee Multiplier], All Right Reserved. 2019.
Author: David Adelstein

“An order on a motion for temporary injunction entered by a trial court must be based on [1] the likelihood of irreparable harm, [2] the unavailability of an adequate remedy at law, [3] the substantial likelihood of success on the merits, and [4] considerations of public interest.”  XIP Technologies, LLC v. Ascend Global Services, LLC,  […]

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Copyright ©  [Sufficient Factual Detail to Support Four Prongs of Temporary Injunction], All Right Reserved. 2019.
Author: David Adelstein