Fla. Civ. Review 3

Question 1

Interrogatories

Answer 1

-Only on parties
-Only 30 W/O leave of court
-Responding party must object or answer fully and under oath within 30 days after Service
-45 Days to respond if served with Summons and Complaint
-Answers to Interrogatories CAN be admissible as substantive evidence
-May be able to examine business records

Question 2

Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes

Answer 2

-each item described with reasonable particularity
-Not obligated to produce docs. within 30 days, just respond
-Scope: reasonably caluculated to lead to the discovery of admissible evidence
-Just produce what’s in possession, don’t have to create shit

Question 3

Objections made to document requests should be:

Answer 3

-specific, boilerplate objections that are overly broad are insufficient
-Objections to portions of a document request do not excuse responding party from producing documents where no objection

Question 4

Production of Docs adn Things WITHOUT Depo

Answer 4

The notice of production from Non-Party: notice of intent to issue subpoena for production from non-parties must be served a MINIMUM of 10 days prior to the issuance of subpoena
-Notice is sent to all parties of record
-ACTUAL SUBPOENA MUST MATCH PROPOSED SUBPOENA ON NOTICE -Party seeking the documents from the non parties is prohibited from sending the notice or proposed subpoenas to the non-parties
-HAVE TO WAIT 10 DAYS IN ORDER TO SEND TO NON-PARTIES (But if there is an objection than have to wait until the objection is ruled on)

Question 5

Objection by Non-party for Documents

Answer 5

-If there are No Objections, either counsel or the Clerk can issue subpoenas for service on the non-parties to produce the documents
-If the Non-party does not object, the Documents are usually produced by Mail
-If the Non-Party DOES Object, the non-party objections cannot be resolved by the court
-If the Non-Party DOES Object the only recourse is to take a records custodian deposition

Question 6

Examination of person

Answer 6

-Team Plaintiff IS generally permitted to attend
-Team Defense is NEVER permitted to attend
-Party being examined has the right to document the CME by stenographic recording, audio or video; Video or audio tape of CME should be considered work product as long as the recording is not being used for impeachment or use at trial

Question 7

Request for admissions

Answer 7

-Carry the same 30 day response time as other discovery methods, extended to 45 days where the requests are served with the initial pleading, unless served with summons and complaint than 45 Days

Question 8

Three Responses to request

Answer 8

o 1) an objection to the request;
o 2) a written response to the request (whether an admission, denial, qualified admission or denial, or statement of the responding party’s inability to admit or deny); or
o 3) no response at all (same as admission)

Question 9

Four Written Responses to Requests

Answer 9

1) An admission,
2) Denial
3) A qualified admission or denial, or
4) A statement that the responding party is unable to admit or deny (Treated as a denial)

A party seeking either (a) to withdraw an admission for failure to respond, or (b) to amend a prior response, must seek such relief by motion

Trial courts have the discretion to allow a party to overcome technical admissions where the party can demonstrate that the failure to timely respond was a result of excusable neglect

Question 10

Motion for Order Compelling Discovery

Answer 10

to be used when a party has failed to:
-answer a question at deposition;
-failed to answer an interrogatory,
-failed to produce in response to an RTP
-failed to appear for a rule 1.360 examination

The losing party shall be required to pay “reasonable expenses incurred” including attorney’s fees, in obtaining an order compelling discovery or successfully opposing the motion

Question 11

Sanctions for Failure to Comply with Order Compelling Discovery

Answer 11

-If the trial court dismisses an action or enters a default as a sanction for discovery violations, a finding that the violations were willful or deliberate must be made

-The striking or a party’s pleadings is justified only where there is a “deliberate and contumacious disregard of the court’s authority”

Question 12

Voluntary Dismissal

Answer 12

Under Rule 1.420, a plaintiff is permitted to dismiss all or part of an action before trial, but the motion must be made in writing.
DURING TRIAL A NOTICE OF VOLUNTARY DISMISSAL IS EFFECTIVE IF RECITED ORALLY AND ON THE RECORD
A party may have one free voluntary dismissal. (W/O Prejudice)
Second voluntary dismissal is with prejudice
In the event of dismissal under 1.420 the Defendant is entitled to an award of costs, Defendant MUST seek the award of costs in the dismissed action with 30 DAYS OF DISMISSAL

Question 13

Involuntary Dismissals

Answer 13

-Provides a “directed verdict” like a motion in a non-jury case
-Motion for dismissal MUST be denied if the claimant has submitted a prima facie case
-Dismissal under 1.420(b) CANNOT be entered against a party before it has completed its presentation of evidence

Question 14

Involuntary Dismissal for Failure to Obey a Court Order-PE

Answer 14

Under Rule 1.420, Court may dismiss a case for failing to obey a court order. The factors the court will consider when determing whether to dismiss the case include the following:

1) Whether the attorney’s disobedience was willful, deliberate, or contumacious or rather the act was due to neglence or inexperience,
2) Whether the attorney had been previously sanctioned
3) Whether the client was personally involved in the act of disobedience
4) Whether any delay prejudiced the opposing party through undue expense, loss of evidence, or in some other manner,
5) Whether the attorney offered reasonable justification for noncompliance, and
6) Whether any delay created significant problems of judicial administration.

Question 15

Failure to Prosecute

Answer 15

-Dismissal can occur only after a party or the court moves for dismissal upon notice and hearing
-PLAINTIFF HAS 60 DAYS AFTER THE NOTICE TO TAKE ACTION OF RECORD AND THEREBY AVOID DISMISSAL FOR FAILURE TO PROSECUTE
-ANY FILING of record during the 60-day period is sufficient to preclude dismissal

Question 16

Dismissal for Fraud on the Court-PE

Answer 16

Inherent authority of the court
Fraud must be shown by clear and convincing evidence
show the party knowingly set in motion unconscionable scheme to interfere with judicial ability to impartially adjudicate the matter
By influencing the trier of fact or unfairly hampering opposing parties claims or defenses
Permeate whole proceeding

Question 17

In order to set aside a default, Def must show: PE

Answer 17

1. Due Diligence; (Supported by affidavit or competent evidence at hearing)
2. Excusable Neglect; and (Supported by affidavit or competent evidence at hearing)
3. A Meritorious Defense (This type of defense is recognized by the court as having potential merit, meaning it could, if proven, effectively counteract or negate the plaintiff’s claims)

Both due diligence and excusable neglect must be verified or supported by affidavit or competent evidence at a hearing
The existence of a meritorious defense should be disclosed by tendering a defensive pleading showing the defense, or by a verified motion or sworn affidavit either (a) stating facts which, if proved, would constitute a meritorious defense or (b) showing legal grounds constituting a meritorious defense

Question 18

Jury Trials

Answer 18

The right to a trial by jury is preserved by the Florida Constitution
THIS IS A RIGHT THAT CAN BE WAIVED (If waived, may NOT be granted without consent of all parties)
-You must Request a trial. By jury in the answer
Failure to request a trial by jury in the complaint or answer is NOT fatal
A party may request a trial by jury NO LATER THAN 10 DAYS AFTER SERVICE OF THE LAST PLEADING DIRECTED TO THE ISSUE

-If trial by jury is waived, a jury trial may NOT be granted without consent of all parties
-Demand for trial by jury may NOT be withdrawn without the consent of the parties

Question 19

Setting Action for Trial

Answer 19

For Streamlined cases and General Cases the court must enter an order setting the trial period NO LATER THAN 45 DAYS before the projected trial term outlined in the case management order
-For cases not subject to rule 1.200 or 1.201 the court MUST enter an order setting the trial only upon finding that the action is ready for trial

An order scheduling a trial term must schedule the trial to begin NO SOONER THAN 30 DAYS AFTER SERVICE OF THE ORDER
-Motion MUST state whether the trial is on the original action
-Motion MUST state whether the trial is on the original action
-Motion MUST state whether it is a jury or non-jury trial
-Motion MUST state the amount of time requested for the trial
-Motion MUST state whether courts has authorized the participation of prospective jurors or empaneled jurors through audio-video communication technology under rule 1.430(d)
-Make sure you estimate the time required for the ENTIRE trial, not just your portion

Question 20

Qualificiations of Jurors

Answer 20

1) At least 18 years old
2) Citizens of the United States and legal residents of Florida and their respective counties
3) MUST possess a driver license or identification card issued by the Department of Highway Safety and Motor Vehicles
4) Or who has executed the affidavit prescribed in § 40.011

Unless civil rights restored, not eligible if under prosecution for or convicted of a felony or certain other crimes
-Citizens 70 years of age and up not eligible unless they request to serve on juries

CIVIL TRIAL MUST HAVE SIX (6) MEMBERS

Question 21

Voir Dire

Answer 21

-Voir Dire is a Right

Challenges for cause: the test for determining juror competency is whether the juror can lay aside any bias or prejudice and render a verdict solely upon the evidence presented and instructions on the law given by the court

Question 22

Preserving your Cause Objections-PE

Answer 22

You MUST do the following to preserve your cause objections for appellate review:
1) Make your challenge for cause
2) Trial court refuses to strike the juror
3) You use a peremptory challenge to strike the juror
4) After exhausting all remaining peremptory challenges, you request an additional peremptory challenge to strike a specifically named juror
5) Your request for an additional peremptory challenge is refused
6) Before the actual swearing of the jury, you must again renew your objection so that the trial court will have one last clear opportunity to take the appropriate corrective action
7) in addition, you must be able to demonstrate to the appellate court that the objectionable juror actually was seated on the jury, and not merely as an alternate

Question 23

Peremptory Challenges

Answer 23

-Each party get THREE (3) peremptory challenges
-Plaintiff gets an amount of peremptory challenges equaling the TOTAL of all defense peremptory challenges
-Peremptory challenges CANNOT be used for discriminatory purposes

Question 24

Test for examining discriminatory use of preemptory challenges: PE

Answer 24

1) A party objecting to the other side’s use of peremptory challenge on racial grounds must
a. Make a timely objection on the basis
b. Show that venire person is a member of a distinct racial group
c. Request that the court ask the striking party’s reason for the strike
2) At this point the burden shifts to the proponent of the strike to come forward with a race neutral explanation
3) If the explanation is facially race-neutral and the court believes that given all the circumstances surrounding the strike, the explanation is not the pretext the strike will be sustained

Question 25

Alternate jurors

Answer 25

-Rule 1.431(g) of the Florida Rules of Civil Procedure provide for the selection of one to two alternate jurors
-By rule alternates are subject to the same selection process as the main panel of jurors
-Alternatives serve only in the event of the incapacity or disqualification of one of the main jurors
-Provides that each party has one peremptory challenge per “alternate juror or jurors”
-“Leftover” peremptory challenges remaining from selection of the main jury cannot, by rule, be used to challenge alternate jurors
-Alternate jurors should be dismissed before the jury retires for their deliberations

Question 26

Backstrike

Answer 26

Rule 1.431(f) provides, “No one shall be sworn as a juror until the jury has been accepted by the parties or until all challenges have been exhausted
-The denial of this right to challenge a juror at any time is reversible error per se
-This means that if a party has available “leftover” challenges, they can be used to strike any of the original 6, even after the court has moved on to selection of alternate jurors
-The right to the unfettered exercise of a peremptory challenge includes the right to view the panel as a whole before the jury was sworn

Question 27

Proffer: a presentation of excluded evidence, Basic Purposes of a Proffer

Answer 27

1) To give the trial court the full picture of the evidence and an opportunity to reconsider its prior evidentiary ruling
2) To include the proposed evidence in the record so that the appellate court can determine whether the trial court’s ruling was correct
3) To demonstrate that the error is real not “imaginary or speculative”

Question 28

The Perfect Proffer: Actual Testimony or Documents

Answer 28

-The safest way to proffer is to offer the actual testimony sought to be entered into evidence
-This involves having the witness answer questions on the record, but OUTSIDE the presence of the jury
-Any proffered documents should be offered to the court outside the presence of the jury and become part of the record

Question 29

Plan B: Oral or Written Summary for Proffer

Answer 29

Counsel may accomplish this by stating with specificity what he or she anticipates will be the witness’ testimony

There are three keys to this type of “Reader’s Digest” proffer
-First, the attorney must be clear she is making a proffer
-Second, the attorney must be aware of the context in which the proffer is being made-what evidence is already before the court and what has not yet been revealed-in order to determine if additional context should be included in the proffer
-Finally, the attorney must make clear the purpose and relevance of the proferred evidence

Do Not Use the Reader’s Digest Proffer unless the judge blocks your proffer of the actual witness testimony first

Question 30

Motions to Continue Trial

Answer 30

Difavored, only granted for good cause
Lack of due diligence is NOT grounds to continue

Motion Requirements: (b)all motions be made in writing unless made at trial
-requires that all motions for continuance be signed by the party, with an exception for “good cause shown” (c)Motion, Timing for Filing: A motion continue must be filed PROMPTLY after the appearance of good cause to support such motion
-failure to promptly request a continuance may be a basis for denying the motion to continue

Question 31

Jury Instructions

Answer 31

-file written requests with the court
5 requirements
1) Florida Standard Jury Instructions be used if applicable unless the judge concludes that the applicable standard jury instructions are inadequate,
2) All parties file written requests for jury instructions,
3) The parties attend a charge conference before the court to settle the charges to be given,
4) All objections be made and ruled upon at the charge conference, and
5) Court informs counsel, also at the charge conference, of the charges it intends to give.

If objecting to the jury instruction, the party must identify the jury instruction by number, state the objection, and state that your proposed instruction is an accurate statement of the law.

Question 32

Motion for Directed Verdict

Answer 32

-MUST be made at the close of the evidence offered by the non-moving party
-MIST be renewed at the close of all evidence
-Motion should not be granted unless the evidence is such that it is incapable of supporting a verdict in favor of the non-moving party
-POST VERDICT MOTION FOR JUDGMENT IN ACCORDANCE WITH MOTION FOR DIRECTED VERDICT MUST BE SERVED WITHIN 15 DAYS AFTER THE RETURN OF THE A VERDICT OR DISCHARGE OF JURY

Question 33

Proposal for settlement

Answer 33

P: can’t serve earlier than 90 days after serving summons
D: can’t serve earlier than 90 days after action commenced
No one any LATER than 45 days before trial is set
30 days from date of service to accept
IN WRITING
Best Practice (for acceptance): file “written acceptance of proposal for settlement”
Proposal is SERVED not FILED
If P gets judgment that is 25% more than the offer, then P is entitled to an award of attorneys fees from date of offer forward
Same Goes for Def if the judgment for P is 25% less than the offer, Def gets attorneys fees
MUST SERVE MOTION FOR ATTORNEY’S FEES OR COSTS WITHIN 30 DAYS OF ENTRY OF JUDGMENT
Award of attorney’s fees to a plaintiff may NOT include a contingency risk miltiplier

Question 34

Summary Judgment

Answer 34

The Plaintiff cannot file a MSJ until 20 days have expired from the date of “commencement of the action”
-The defending party may file an MSJ at any time
-If a Defendant files an MSJ before 20 days have elapsed, the plaintiff can immediately file an MSJ
-Can file an MSJ before Def. files and Answer
-NO Obligation to serve affidavits in support of the motion

Question 35

Evidence to provide grounds to support an MSJ without Affidavit being filed

Answer 35

Admissions in pleadings, sworn depo, sworn interrogatories and admissions can all provide grounds to support a motion for SJ without an affidavit being filed

Question 36

When should moving papers be served for an MSJ

Answer 36

at least 40 days before the time fixed for the hearing
MOTION AND ANY SUPPORTING EVIDENCE OR AFFIDAVITS MUST BE SERVED COMTEMPORANEOUSLY AT LEAST 40 DAYS PRIOR TO HEARING

Question 37

Opposition to the MSJ

Answer 37

Requires that all OPPOSING FACTS AND EVIDENCE (including affidavits) be served NO LATER THAN 60 DAYS AFTER SERVICE OF THE MOTION FOR SUMMARY JUDGMENT

Question 38

MSJ Hearing

Answer 38

-Court CANNOT consider live testimony at the summary judgment hearing
-The moving party bears the initial burden of showing the court, by reference to materials on file that there are no genuine issues of material fact that should be decided at trial
-The Court must view the evidence in the light most favorable to the non-movant and resolve all doubts in the non-movant’s favor -IN ORTHER WORDS, SJ is required if the evidence is such that a reasonable jury could NOT return a verdict for the nonmoving party (Essentially a directed verdict standard)
-AN ORDER GRANTING AN MSJ IS NOT AN APPEALABLE “FINAL ORDER”
-A final summary judgment IS appealable

Where a partial summary judgment completely disposes of claims with respect to a party, the judgment is final and subject to immediate review

Question 39

Denial of certain MSJs is subject to interlocutory review

Answer 39

-Order determing that, as a matter of law, a party is not entitled to workers’
Compensation immunity
-Order as a MOL a party is not entitled to absolute or qualified immunity in a
Civil rights claim arising under federal law
-Order as a MOL a party is not entitled to immunity under section 768.28(9)
Florida Statutes
-Order as a MOL a party is not entitled to sovereign immunity

Question 41

Motions for New Trial and Rehearing

Answer 41

-A motion for new trial or for rehearing shall be served not later than 15 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action -THE OPPOSING PARTY HAS 10 DAYS AFTER SUCH SERVICE WITHIN WHICH TO SERVE OPPOSING AFFIDAVITS
-The court is NOT required to grant a hearing before DENYING a motion for a new trial or rehearing
-An Order granting a new trial or rehearing MUST specifically recite the grounds for the new trial or rehearing

Question 42

Motion to Alter or Amend a Judgment

Answer 42

Motion for new trial or rehearing shall be served not later than 15 days after the return of the verdict in a jury or or non-jury case

Question 43

1.540(a) Clerical Mistakes

Answer 43

-applies only to remedy clerical mistakes and errors from oversight or omission
-may be made at ANY Time
-Examples of clerical errors: math computations, misdescription of parties

Question 44

1.540(b) Mistake, Inadvertence, Surprise, or Excusable Neglect

Answer 44

Mistake or inadvertence, as contemplated by the rule, is an honest and inadvertent error made in the ordinary course of litigation, usually by the court itself

-Examples of mistakes correctable by (b)(1) are: 1) when counsel inadvertently and through error submits an incorrect order which the court signs
(2)entry of a final judgment under a mistaken belief that the party against whom the judgment is being entered is in default,
(3) mutual mistake of the parties,
(4)an order of dismissal inadvertently entered without an intended reservation of jurisdiction
(5) a voluntary dismissal inadvertently taken with prejudice
(6) the failure of a court to send the defendant a copy of the final judgment, thus precluding a timely appeal of the judgment

Question 45

Newly Discovered Evidence-PE

Answer 45

The test for determining whether to grant relief on the basis of newly discovered evidence is whether: ALL 5 MUST BE PRESENT AND MADE WITHIN 1 YEAR

1) The evidence is more likely than not to change the outcome;
2) The evidence was discovered after the conclusion of the trial or proceeding,
3) The evidence could not have been timely discovered by the exercise of due diligence;
4) The evidence is material to the issues raised in the trial or proceeding; and
5) The evidence is not impeachment evidence or cumulative evidence
Motion based on newly discovered evidence MUST be made no later than ONE YEAR after entry of judgment

Question 46

1.540(b)(3) Fraud, Misrepresentation and Misconduct 1 YEAR

Answer 46

Encompasses fraudulent misrepresentations as to present or past facts concerning the litigation upon which one acts to his or her material detriment

-Motion for reflief from judgment allegedly based on fraud is limited to the one-year time frame set forth in the rule

-FRAUD MUST BE PLED WITH PARTICULARITY
-Must set for the essential facts that constitute fraud and not mere legal conclusions
-For the moving party to be entitled to an evidentiary hearing, the motion must identify the fraud and set forth the reason why the fraud would entitle the movant to relief

Question 47

Void Judgment

Answer 47

If a court determines that the judgment is void, it has no discretion and must vacate the judgment
NO TIME LIMIT

Question 48

Satisfaction, Release

Answer 48

A motion under Rule 1.540(b)(1), (2), and (3), must be made within one year from the date the judgment is entered.

Question 49

Mediation

Answer 49

-A case can be referred for mediation at any time upon order of the court or stipulation of the parties
-A party may move, within 15 days after the order of referral, to dispense with mediation or arbitration
-First conference held within 60 days of the order of referral

Question 50

Disqualification of Mediator/Arbitrator

Answer 50

-Any Party may move to enter an order disqualifying a mediator or an arbitrator for good cause

Question 51

Mediation (Deemed to appear)

Answer 51

A case can be referred for mediation at any time upon order of the court or stipulation of the parties .Unless otherwise permitted by court or stipulated by the parties in writing, a party is deemed to appear at a mediation conference if the following persons are physically present:
1) Party or party representative having full authority to settle without further consideration,
2) The party’s counsel of records, if any, and
3) A representative of the insurance carrier for any insured party who has full authority to settle.

Question 52

Certification of Authority Mediation

Answer 52

Unless otherwise stipulated, each party 10 DAYS PRIOR to mediation shall file with the court and serve all parties
-written notice of persons to attend, or insurance company with authority

Question 52

Overall for mediation

Answer 52

Party may move within 15 days after order of referral to dispense

Frist conference held within 60 days of referral

Once you start got 45 to finish

Submit Certification of Authority 10 days before mediation

Question 52

1.600 Deposits in Court

Answer 52

-Party may deposit all or part of sum with the court upon notice to every other party and by leave of court
-Rule 1.600 Permissive in nature, court can’t compel an unwilling party to deposit (Generally)
-Some exceptions are statutory
-An order authorizing payment into the registry is a non-final order that is nonappeallable as a matter of right

Question 53

Rule 1.610 Injunctions -PE

Answer 53

In order to obtain temporary injunctive relief, the party requesting relief must:
1) Specifically request injunctive relief, setting forth with specificity the grounds upon which the temporary injunction relief is sought,
2) Submit supporting facts in verified form, either by affidavit or verified pleading
3) Demonstrate a substantial likelihood of irreparable harm,
4) Demonstrate a substantial likelihood of success on the merits,
5) Demonstrate the lack of an adequate remedy at law.

Purely economic injury is fatal to an award of injunctive relief.
No temporary injunction can be issued by the court without the posting of a bond to protect the party who is enjoined from costs and damages suffered in the event of a wrongful injunction.
An injunction order conditioned upon a bond is not effective until the bond is filed.