Fla. Civ. Review 2

Question 1

Attaching Copy and Exhibits to Pleadings

Answer 1

Any exhibit attached to a Pleading MUST be considered a part of the Pleading

COMPLAINT BASED ON A WRITTEN INSTRUMENT DOES NOT STATE A CAUSE OF ACTION UNTIL THE INSTRUMENT OR AN ADEQUATE PORTION THEREOF ATTACHED TO COMPLAINT

Question 2

Time to Answer varying on who Def is

Answer 2

Civilian Defendant=20 DAYS TO RESPOND*

Gov’t Defendant=40 DAYS TO RESPOND IF NOT A TORT

Gov’t Defendant=30 DAYS TO RESPOND IF A TORT*

Question 3

If court denies motion directed toward complaint how long to respond with Answer?

Answer 3

10 days (or when Court says it’s due)

Question 4

The Filing of a Motion Based on the 7
Grounds Listed in 1.140 (b) Tolls the Time
for Serving an Answer..what are the 7?

Answer 4

1) Lack of SMJ
2) Lack of PJ
3) Improper venue
4) Insufficiency of process
5) Insufficiency of service of process
6) Failure to state a cause of action
7) Failure to join indispensable parties

Question 5

What is waived if not raised in preanswer or answer?

Answer 5

Venue and PJ

Question 6

Defense of lack of SMJ can be raised when?

Answer 6

Anytime

Question 7

Motion to dismiss for Failure to Stae a Cause of Action

Answer 7

 Court limits its Analysis to the “Four Corners” of the Complaint
 All Allegations of the complaint must be taken as true
 Any motions to dismiss that are granted are invariably granted with “Leave to Amend”

Question 8

Preferred method to deal with Insufficiency of Process and Insufficiency of Service is…

Answer 8

Motion to Quash

Question 9

Motion for Judgment on the Pleadings

Answer 9

• -Motion made after the pleadings are closed
• -Pleadings are closed until the last pleading directed toward the Complaint Has Been Filed
   -In other words, the motion cannot be filed until there has been an answer and, Reply or the Time for Filing a Reply has elapsed
• All factual allegations are taken as true in favor of Non-Moving Party
• Judge Cannot Consider Depositions, Answers to Interrogatories, or Affidavits
• Motion should only be granted when the court concludes that the moving party is entitled to judgment as a matter of law

Question 10

How Judgment on the Pleadings is different from Motion to Dimiss and Summary Judgment?

Answer 10

• DIFFERS FROM A MOTION TO DISMISS IN THAT THE COURT CAN CONSIDER AFFIRMATIVE DEFENSES IN THE DEF’S ANSWER
• DIFFERS FROM MOTION TO DISMISS IN THAT THE OUTCOME IS NOT DISMISS WITH LEAVE TO AMEND
• DIFFERS FROM SUMMARY JUDGMENT IN THAT NO EXTRINSIC EVIDENCE IS CONSIDERED

Question 11

Sham Pleadings PE

Answer 11

There are two main requirements for a pleading to be a sham, the pleading must be palpably and inherently false, and the falsity must be known to the party interposing it to be true. A Defendant can move to strike a pleading that is alleged a “sham”. The motion must contain the following:
1) be verified,
2) set forth facts showing why the pleading is sham, and
3) be supported by an affidavit or deposition testimony.
After the motion is filed, the court must hold an evidentiary hearing and there must be notice given on the evidentiary hearing. The motion must also be heard before the trial.

Question 12

Compulsory Counterclaims

Answer 12

if it arises out of the same transaction or occurrence that is the subject of the main claim

Use the “Logical Relationship Test”: same aggregate of facts serves as the basis for both claims

-If the Former Cross-Claim is later brought as an independent action, then the opposing party cannot claim that it should have been brought as a counterclaim

-Compulsory counterclaim MUST be raised in Original Answer or in Amended Answer after Leave of Court

-Statute of Limitations DOES NOT BAR A COMPULSORY COUNTERCLAIM

Question 13

Permissive Counterclaim

Answer 13

one that does not arise out of the same transaction or occurrence
o SOL WILL BAR A PERMISSIVE COUNTERCLAIM
o Must have a sufficient jurisdictional basis

-Counterclaim may be asserted for damages in excess of the amount claimed in the initial claim or action

Question 14

Crossclaim

Answer 14

A claim by ONE defendant against ANOTHER defendant
o Crossclaim is NOT compulsory
o Always permissive
-Examples: Indemnity

Question 15

When can you bring a third party claim without leave of court?

Answer 15

within 20 days of Service of Answer, otherwise need leave of court

Third Party Claim is NOT compulsory
Claims agasint the 3rd party are NOT waived if they are not asserted in the third-party claim

Question 16

When can you amend a pleading?

Answer 16

Once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served
You can amend with leave of court after motion or written consent of adverse party

Question 17

Amendments to Conform with the Evidence

Answer 17

-This happens at trial via an Ore Tenus Motion (oral)
-Can occur through express or implied consent of the opposing party
-Implied consent may be found in the pretrial statement, opening statement
of counsel or presentation of evidence
-Main issue is whether there is prejudice to the opposing party; Prejudice may be in the form of failure to do Discovery on the issue or failure to be prepared to present evidence on the issue

 Objection of Relevance/Materiality should be made at trial for evidence presented on an issue not plead

Question 18

If seeking approval by court for an amended pleading, do you need to attach a copy of the proposed amended pleading to your motion to amend?

Answer 18

Yep

Question 19

Relation Back

Answer 19

Set forth transactions, events which have happened since the date of the original pleading

Must arise out of same occurrence or does not relate back

Supp. Pleadings Do NOT relate back, they set forth transactions which have happened since the date of original pleading

Question 20

Punitive Damages

Answer 20

A motion for leave to amend a pleading to assert to claim for punitive damages shall make
a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages-SUPPORTED in form of affidavit, deposition

Question 21

Parties

Answer 21

1) “Real Party” party who has actually beeb injured, OR as a
2) Nominal Representative Party (stands in shoes of injured party)

Although a claim for personal injury of a minor child must be brought by the parent or guardian of the minor, the MINOR is the real party in interest

Question 22

Interventions -FACTORS

Answer 22

An interest in the matter of the Litigation, Such that the intervenor will either gain or lose by the direct legal operation and effect of the judgment

1) size of the interest,
2) potential for conflict or new interests, and
3) source of the interest.

Question 23

Misjoinder and Nonjoinder of Parties

Answer 23

Misjoined claims may be severed and proceeded with separately

Question 24

Consolidation-FACTORS

Answer 24

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions
1) Whether the litigation will be accelerated due to the consolidation
2) Unnecessary costs and delays
3) The possibility of inconsistent verdicts
4) Whether consolidation would eliminate duplicative trials that involve substantially the same core of operative facts and question of law
5) Whether consolidation would deprive a party of a substantive right

Motion must be made before trial

Question 25

Standard for Discretionary Granting of Separate Trials

Answer 25

A party moving for separate trials must establish that it will be prejudiced or inconvenienced -trial courts have wide discretion in determining whether to order separate trials Granting Separate Trials to Bifurcate Libaility and Damages Determinations: -A court may bifurcate issues of liability and damages, trying the liability issues first and then, if necessary, determining the appropriate amount of damages -Upon request, Florida courts MUST Grant Bifurcation of Punitive Damage Claims

Question 26

Interpleader-FACTORS

Answer 26

The rule for interpleader establishes that persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff may be exposed to multiple liability. It is required for interpleader that a stakeholder have reasonable fear of exposure to multiple liabilities when interpleader action is sought. There is a two-stage action for interpleader, 1) the trial court determines whether interpleader is proper, 2) the trial court determines who is actually entitled to the stake. The potential liability can only be to one claimant. Potential liabilities in varying amounts to several parties will prohibit an action for interpleader. If interpleader is properly pleaded, the interpleader may deposit the stake into the court registry or order an alternative safekeeping.

Question 26

Survivor-Substituion

Answer 26

Motion to substitute MUST be made within 90 days of the suggestion of death Can be made by ANY party Public officer, automatically substituted with his replacement

Question 27

Discovery Methods-NUMBERED

Answer 27

1) Depositions upon oral examinations or written questions 2) Written interrogatories 3) Productions of documents or things or permission to enter upon land or other property for inspection and other purposes 4) Physical and mental examinations 5) Request for admission

Question 28

Work Product

Answer 28

-Pre-suit and Post-suit investigation conducted by a party, its agent, attorneys or investigators Work product discoverable “only upon a showing that the party seeking discovery has need of the materials in the preparation of his case and that he is unable without UNDUE HARDSHIP to obtain the substantial equivalent of the materials by other means” -Incident reports -accident reports -Witness statements (witness is entitled to a copy of her statement upon request) -Contents of insurance company claim -Surveillance video (private investigator video) o Party is entitled to a copy of her statement

Question 29

Expert Witness General

Answer 29

Expert Witness: a person qualified by knowledge, skill, experience, training, or education to give testimony in the form of an opinion EXAMPLES: * Accident reconstruction engineer * Mechanical engineer * Epidemiologist * Attorney * CME physician (conducts a compulsory examination of the plaintiff) TREATING DOCTORS ARE NOT CONSIDERED EXPERTS…Although they may render opinion testimony

Question 30

Able to Obtain About Expert Witness PE

Answer 30

Experts who are expected to be called to testify at trial are discoverable. A party may seek information about the expert witness via interrogatories. A party may require any other party (via interrogatory) to: 1) Identify each person whom the other party expects to call as an expert witness at trial, 2) State the subject matter on which the expert is expected to testify, 3) State the substance of the facts and opinions to which the expert is expected to testify, and 4) Summary of the grounds for each opinion. A party make not seek financial records of the expert, such as tax returns or college transcripts. 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 1.390 WITHOUT MOTION OR ORDER OF COURT

Question 31

Able to Obtain about Expert Witness PE

Answer 31

By iterrogatory, ask: -idenitfy person expected to be expert witness -state subject matter on which expert expected to testify -substance of facts and opinions -summary of the grounds for each opinion May depose without court order A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called an expert witness at trial: 1) The scope of employment in the pending case and compensation for such service, 2) Expert’s general litigation experience, including the percentage of work performed for plaintiffs and defendants, 3) Identify other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.

Question 32

Failing to file privilege log can...

Answer 32

result in a waiver of privilege Best Practice, timely assert your claims to privilege in objections or a motion for protective order Supported by Affidavit and Contemporaneous Privilege Log

Question 33

Protective Orders: Court may make any order to protect a party PE

Answer 33

1) That discovery not be had; 2) 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 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

Question 34

After 1/1/2025 for Supp

Answer 34

Absolute obligation to supplement

Question 35

When do you file discovery with court

Answer 35

Not until such time as it is filed for good cause Good Cause: only when allowed or required by applicable rule of procedure or court order

Question 36

Depo Before Action PE

Answer 36

A person who desires to obtain testimony regarding any matter that may be cognizable in court may file a verified petition in the circuit court in the county of residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show the following: 1. That the petitioner expects to be a party to action in a court of Florida, but is presently unable to bring the action, 2. The subject matter of the expected action and petitioner’s interest, 3. The facts which the petitioner desires to establish by the proposed testimony and the petitioner’s reasons for desiring to perpetuate it, 4. The names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, 5. The names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each. The petitioner shall also request an order authorizing the petitioner to take the deposition of the persons named in the petition.

Question 37

When can take Depos

Answer 37

-Def doesn't have to wait -P waits 30 days from service of process, not commencement of the action (Notice is required, but just "reasonable")

Question 38

Non-Party Depo

Answer 38

Must be Subpoenaed Leave of court required for depo of person in prison Party wishing to take depo must give notice to other parties "reasonable time" * A non-party witness can be required to attend a depo “only in the county wherein the person resides or is employed or transacts business in person”

Question 39

Best Practice when representing a non-resident plaintiff is to:

Answer 39

file a motion for protective order requesting that the depo in Florida be coordinated to take place in Florida in conjunction with mediation and any CME requested by the Def

Question 40

Depo: Def who is not seeking affirmative relief:

Answer 40

will not be required to travel to be deposed by the plaintiff

Question 41

Depo: Corporate Rep for a Corp not seeking affrimative relief is to be taken:

Answer 41

in the county where the PPB is

Question 42

Notice for Duces Tecum Deposition

Answer 42

30 days

Question 43

Video Recording of Depo

Answer 43

Notice must state that the Depo wil be recorded by video and also give the name and address of the videographer

Question 43

Depo of Minor

Answer 43

Bottom Line: you cannot exclude parents/guardians or minor without a court order showing good cause

Question 44

Objections During Depo

Answer 44

-Objection must be stated concisely and in a nonargumentative and nonsuggestive manner -A Party may instruct a Deponent not to answer only when necessary to preserve a privilege, to enforce limitation on evidence directed by the court, or to present a motion under Subdivision (d), otherwise Evidence Objected to must be taken subject to the objections -Any Objections other than to the form of a question are reserved