P.M. Session (PQs)

Question 1

Hypnosis in Florida

Answer 1

When a witness provides a description of a suspect at the time of the crime, and the information elicited from a subsequent hypnotic session is consistent with that previous description, AND the witness testifies in court based on an independent recollection of the events, the testimony IS admissible. So this requires:

1. Consistent testimony;
2. Testifying on an independent recollection of the events.

Question 2

Prior written statement procedure in Florida

Answer 2

In Florida, a prior statement that is written must be SHOWN to the witness who wrote it before the witness can be examined about it

Question 3

Federal Rule - Dying Declaration

Answer 3

Under the federal rules, the dying declaration exception applies only in homicide prosecutions or civil actions.

Question 4

Florida Rule - Dying Declaration

Answer 4

Under the Florida version, this exception applies in all civil and criminal cases.

Question 5

Federal & Florida Rule - Dying Declaration

Answer 5

The witness need not have actually died.

Question 6

Will the Florida supreme court review a circuit court decision passing on the validity of bonds?

Answer 6

Yes.

Question 7

Does the Florida supreme court have the power to issue common law writs of certiorari?

Answer 7

No, circuit courts and district courts of appeal do.

Question 8

Only the _____ can certify questions to the supreme court.

Answer 8

District courts of appeal

Question 9

The Supreme Court CAN/CANNOT review circuit court decisions addressing a statute’s validity?

Answer 9

CANNOT

Question 10

Does a promoter “bind” the corporation in preincorporation contracts?

Answer 10

No, only the promoter is bound.

Question 11

When does a corporation adopt a contract?

Answer 11

When it accepts the benefits of a preincorporation contract, and this makes the corporation liable. (however, unless there is a novation, the promoter continues to be liable).

Question 12

If a demand is made for a felony charge (or a felony + misdemeanor charge), when must the trial be held?

Answer 12

Within 50 days.

Question 13

If a demand is NOT made in a felony charge, when must trial take place?

Answer 13

175 days from arrest/custody.

Question 14

Does Florida recognize a privilege for written reports made by persons involved in motor vehicle accidents?

Answer 14

Yes, and this includes statements made in the report itself, as well as statements made to a law enforcement officer for the purposes of completing the report.

Question 15

Is a statement offered to prove knowledge hearsay?

Answer 15

No, because it is not for the truth of the matter being asserted.

Question 16

To meet the excited utterance exception, the declaration must…

Answer 16

be made under the stress of excitement produced by the startling event and must concern the immediate facts of the startling event

Question 17

In Florida, is there an exception to the hearsay rule for learned treatises?

Answer 17

No, and they cannot be admitted as substantive proof of the information they contain.

Question 18

For what purposes is a treatise admissible in Florida?

Answer 18

To attack the credibility of an expert, once the treatise has been established as authoritative.

Question 19

Is jurisdiction proper under Florida’s long arm statutory provision when a contract is breached in Florida by failing to perform an act that was due to be performed in Florida?

Answer 19

Yes.

Question 20

What speedy trial provisions are available to a defendant who escaped/is out of state?

Answer 20

The defendant is not entitled to the prosecution of the speedy trial provisions until she returns to the county that filed charges, and files a written notice with the court and the prosecutor that she has returned.

Question 21

Does Florida recognize the doctrine of spousal immunity?

Answer 21

No!

Question 22

The only marital privilege Florida recognizes is the…

Answer 22

Privilege for confidential communications made between spouses during the course of a valid marriage (only covers statements made between the two).

Question 23

In Florida, a defendant’s witness can only use _____ evidence to prove the defendant’s character.

Answer 23

Reputation.

The witness cannot give her personal opinions concerning the defendant’s character traits.

Question 24

How may service of process on a minor be effected?

Answer 24

By service on the minor’s parent.

Question 25

When is Sunday service permitted?

Answer 25

Only when the plaintiff states by affidavit that he has reason to believe the defendant will flee the state.

Question 26

What does abode/service process require?

Answer 26

It requires that process be left with a resident of defendant’s abode who is aged 15 or older. (i.e. cannot leave the process under the front door without informing that person of the contents of the process.

Question 27

When may service be permitted on a defendant’s spouse?

Answer 27

Only if the spouse requests such service or the spouse is also a party to the action, and the spouse and the party to be served are residing together.

Question 28

When do nonprefered shares get dividends?

Answer 28

If a corporation has two or more classes of shares, with one having preference upon liquidation, dividends may be paid to the nonpreferred shares only IF the total assets are sufficient to pay all liabilities and also the liquidation preference.

Question 29

When is a motion to sever timely?

Answer 29

At least 10 days before trial.

Question 30

What happens if a dividend is paid while a corporation is insolvent?

Answer 30

Such a dividend constitutes a fraudulent conveyance for which shareholders are directly liable regardless of their knowledge or lack of knowledge of the insolvency.

Question 31

When may substituted service upon the secretary of state be authorized?

Answer 31

When the claim against a foreign corporation arises out of, or is related to, the defendant’s business in the state. (i.e. cannot use this if the injuries arose out of a transaction in Texas).

Question 32

Where may a nonresident of Florida sued in a Florida court be sued?

Answer 32

In ANY county.

Question 33

Clergy privilege

Answer 33

A person has a privilege to refuse to disclose and to prevent others from disclosing a confidential communication by the person to a member of the clergy in the clergy member’s capacity as a spiritual advisor.

Question 34

Can a “clergy” be someone that a person reasonably believed to be so?

Answer 34

Yes, he doesn’t have to actually be a clergy.

Question 35

When/how may challenges for failure to state a claim be asserted?

Answer 35

They may be asserted in the responsive pleading or by motion, and such a defense is not waived by any previously filed motion.

Question 36

Is SMJx waived if not raised in the initial responsive motion?

Answer 36

No, and such a challenge is not subject to waiver during either trial or appeal, and that challenge may be asserted in the responsive pleading or by motion.

Question 37

What is the extent of a director’s liability for an improper distribution?

Answer 37

He is liable regardless of actual knowledge of the corporations insovency.

Question 38

May a director receive contribution from shareholders aware that the distribution was improper?

Answer 38

Yes, but not from those who had no knowledge.

Question 39

What may creditors recover from improper distributions?

Answer 39

If it is a fraudulent conveyance, the creditors may recover the amount of the improper distribution from the shareholders.

Question 40

What type of action is a “quiet title” action?

Answer 40

It is an in rem action that will fully adjudicate the interests of all persons in the property.

Question 41

What are the characteristics of a quiet title action?

Answer 41

• Upon entry of a court judgment in the quiet title action, all persons who previously claimed an interest in the property will lose their interest;
• In order to bind an out-of-state owner, at a minimum notice must be provided by mailing such notice to their known address in that state;
• A judgment in the quiet title action will not impose any personal liability on persons claiming an interest in the property

Question 42

When must a hearing be held on a motion for expiration of speedy trial?

Answer 42

The hearing must be held within five days, and if the court finds that the delay is NOT excusable, they must order the D tried within 10 days. If the court finds that the delay WAS excusable, trial must commence within 90 days.

Question 43

Is the repurchase of corporate shares treated as a distribution?

Answer 43

Yes, and it is subject to the same financial tests applicable to the distribution of dividends.

Question 44

What is the “corporate opportunity” doctrine?

Answer 44

A director failing to give his corporation a chance to act on a business opportunity in which the corporation would be interested may be liable under this doctrine.

• It does NOT matter whether the director is active in the day-to-day operations of the corporation

Question 45

When does a corporate vice president have implied authority to act?

Answer 45

Only when the president is dead or incapacitated.

• Courts are split as to whether a corporate president may sue on behalf of the corporation absent board approval.

Question 46

When are communications between a corporate employee and the corporation’s attorney protected by the attorney-client privilege?

Answer 46

If:

1. the communication would not have been made but for the contemplation of legal services;
2. the employee making the communication did so at the direction of a corporate superior;
3. the superior made the request of the employee as part of the corporation’s efforts to secure legal services or advice;
4. the content of the communication relates to the legal services being rendered and the subject matter of the communication is within the scope of the employee’s duties; and
5. the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

Question 47

What is the rule regarding unknown eavesdroppers?

Answer 47

Florida follows the federal rules regarding unknown eavesdroppers. The privilege is NOT abrogated if the confidential communication is overheard by someone unknown to the parties; the privilege still applies to the parties to the confidential communication.

Question 48

What is the modern trend regarding testimony by eavesdroppers?

Answer 48

As long as the holder of the privilege was not negligent, there is no waiver of the privilege and the eavesdropper will be prohibited from testifying

Question 49

Will dissolution occur where a general partner withdraws?

Answer 49

No, as long as there is at least one general partner in the firm and the partnership agreement permits the partnership to be carried on.

Question 50

Will death of a limited partner dissolve the limited partnership?

Answer 50

No.

Question 51

May a court deny a motion for discharge if the failure to hold a trial is attributed to the accused, a co-defendant, or counsel?

Answer 51

Yes, any of these parties.

Question 52

When may a witness give his opinion to another’s mental condition or state?

Answer 52

Only if it can be shown that he had the opportunity to observe the subject.

• the person need not be an expert trained in psychology or psychiatry (i.e. testimony on insanity is not limited to ONLY experts)

Question 53

A written deposition is generally subject to the same provisions as…

Answer 53

Oral depositions.

Question 54

What is true of oral depositions?

Answer 54

• D has 30 days in which to serve cross questions on other parties and the officer before whom the deposition will be taken;
• If D serves cross questions for the written deposition, plaintiff’s attorney may serve recross questions within 10 days;
• If the D objects to questions that have been submitted by P’s attorney, she may move the court to prohibit the asking of such questions

Question 55

Florida’s privilege for sexual assault victims

Answer 55

Florida recognizes a privilege for confidential communications between a sexual assault counselor and a sexual assault victim, and between a psychotherapist and a patient.

Question 56

Does Florida recognize a general physician-patient privilege?

Answer 56

No. However, a physician-patient privilege does exist where the physician is diagnosing and treating a mental or emotional condition.

Question 57

When is net worth relevant for discovery purposes?

Answer 57

Net worth is not relevant absent some claim for punitive damages (which are rarely obtained)

Question 58

Does a shareholder have the right to inspect financial statements and accounting records of a corporation?

Answer 58

Yes, any shareholder may if:

• he gives the corporation written notice of his demand at least five business days before the date on which he wishes to inspect and copy; and
• His demand is made in good faith and for a proper purpose;
• He describes with reasonable particularity his purpose and the records he desires to inspect; and
• The records are directly connected with his purpose

Question 59

What objection is NOT waived if the objection was not made at the time a deposition was taken?

Answer 59

That the deponent was mentally incompetent.

Question 60

What is an affiliated transaction?

Answer 60

A significant transaction (such as a merger, slae of more than 10% of assets, or dissolution) with an interested shareholder who beneficially owns more than 15% of the corporation’s outstanding shares.

Question 61

What are the requirements for affiliated transactions?

Answer 61

In addition to the approval generally required by law or the corporate charter, an affiliated transaction must also be approved by:

1. A majority of the corporation’s disinterested directors, or
2. two-thirds of the remaining disinterested shareholders

NOTE: the statute does not apply to any corporation with fewer than 300 shareholders

Question 62

What MUST the prosecutor do upon D’s notice of intent to participate in discovery?

Answer 62

Must provide for inspection, photographing, testing, and copying any object of or obtained from the D

• The prosecutor is entitled to provide any copy of D’s grand jury testimony
• The P is required to provide D with any statements/information against her

Question 63

What if a P refuses to disclose a statement against the D in discovery?

Answer 63

The trial court may order that the statement be excluded as evidence

Question 64

Is a guilty plea a hearsay exception?

Answer 64

Yes, it constitutes a party-opponent admission and is fully admissible both as substantive evidence and as impeachment evidence

Question 65

Does a party and his attorney have the right to attend the deposition even if the party will also testify?

Answer 65

YEs.

Question 66

If a deponent refuses to answer any question, the proponent of the question has what choices?

Answer 66

1. completing the examination;
2. adjourning

The proponent may then move in the court where the action is pending or in the district where the deposition is being taken for an order directing the deponent to answer.

Question 67

Upon motion of ANY party or the deponent upon grounds of annoyance, embarrassment, or oppression, the court in which the action is pending or in the district where the deposition is being taken may order…

Answer 67

1. that the deposition cease forthwith or;
2. the issuance of a protective order

The deponent may require the suspension of the deposition until a court ruling on the motion to terminate may be obtained

Question 68

May a corporation in Florida be held vicariously liable for punitive damages in a situation where an individual employer would be so liable?

Answer 68

Yes.

Question 69

Punitive damages may be imposed for the conduct of an employee or agent only if:

Answer 69

The conduct of the employee was intentional misconduct or gross negligence and;

1. the corporation actively and knowingly participated in the conduct;
2. the officers, directors, or managers knowingly condoned, ratified, or consented to the conduct; or
3. the corporation engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered.

Question 70

Must the defendant be present for jury selection?

Answer 70

Jury selection, which includes exercising peremptory challenges, is one of the essential stages at which the defendant must either be present or waive his presence.

Question 71

Normally, can the deposition of a witness be used affirmatively at trial?

Answer 71

No, it cannot, unless the witness is unavailable for trial. Its use is reserved for contradictions or impeachment.

Question 72

When a character witness testifies to the good character of the defendant, may the witness be cross-examined regarding the basis of his statement that the defendant’s character is good?

Answer 72

Yes.

Question 73

What does the past recollection recorded exception to the hearsay rule provide?

Answer 73

A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made by the witness when the matter was fresh in his memory and to reflect that knowledge correctly may be read to the jury under this exception.

• A party may read into evidence such a memorandum or record when it is admitted, but it is not admissible as an exhibit unless offered by the adverse party.

Question 74

What can a Defendant do if they were not informed of the correct sentence?

Answer 74

He should be allowed to withdraw his plea.

[See Smith v. State]

Question 75

Are admissions of a party admissible against a co-defendant merely because they happen to be joined as parties to the action?

Answer 75

No, if there are two or more parties, the admission of one party is admissible as against that party, but in the absence of authority, it is not admissible against the co-party

Question 76

A court MAY or MUST take judicial notice of duly enacted ordinances of municipalities and counties located in Florida?

Answer 76

MAY, provided such ordinances and resolutions are available in printed copies or as certified copies.

Question 77

Florida Statutes section 90.202 provides that

Answer 77

A court MAY take judicial notice of facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court

Question 78

Florida Statutes section 90.203 provides that

Answer 78

A court SHALL take judicial notice of any matter in section 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; and
2. Furnishes the court with sufficient information to enable it to take judicial notice of the matter

Question 79

Does requesting judicial notice during trial provide sufficient notice to enable the adverse party to prepare to meet the request?

Answer 79

Not likely.

Question 80

Can a party be sanctioned for failure to appear at a deposition?

Answer 80

Yes, he could be subject to discovery sanctions.

Question 81

Where should a defendant seeking to stay the enforcement of an injunction seek stay?

Answer 81

From the trial court, NOT the appellate court

Question 82

Once the jury has rendered its verdict, may the judge praise and/or criticize the verdict?

Answer 82

NO!!! absolutely not.

Question 83

In a merger between a business trust and a corporation, which business entity “survives”?

Answer 83

The corporate entity.

Question 84

Evidence of precautionary measures made following an accident are NOT admissible

Answer 84

to prove negligence or culpable conduct. However, evidence of repairs or other precautionary measures made following an accident ARE admissible to establish the feasibility of precautionary measures where such feasibility is controverted.

Question 85

Flroida’s requirements for the admissibility of the opinions of lay witnesses are MORE or LESS restrictive than the Federal Rules?

Answer 85

MORE

Question 86

When are lay opinions admissible in Florida?

Answer 86

When the witness cannot readily and with equal accuracy and adequacy, communicate what he has perceived to the trier of fact without testifying in the form of opinions AND the testimony will not mislead the trier of fact; AND the opinion does not require special knowledge or training.

Question 87

Are factual findings resulting from legally authorized investigations admissible under Florida’s code

Answer 87

NO!! this includes police investigations, OSHA, etc…

Question 88

Where a party has filed some paper in the suit, are they entitled to receive notice that the other party has filed application for default?

Answer 88

Yes, he must receive notice

Question 89

A defendant is entitled to how many peremptory challenges?

Answer 89

Only the maximum number for the most serious crime. He does NOT get the sum of the peremptories available for each crime.

Question 90

Does a known creditor need to be provided with notice of the dissolution?

Answer 90

No, under RUPA, third parties will be deemed to have notice of dissolution 90 days after a statement of dissolution is filed with the secretary of state.

Question 91

Does a known creditor need to be provided with notice of the dissolution?

Answer 91

No, under RUPA, third parties will be deemed to have notice of dissolution 90 days after a statement of dissolution is filed with the secretary of state.

Question 92

When are specific instances of conduct between the victim and persons other than the defendant admissible in a sexual battery case?

Answer 92

Where the defendant first establishes to the court in an in camera proceeding that such evidence tends to establish a pattern of conduct or behavior on the part of the victim so similar to the conduct or behavior in the instant case that it is relevant to the issue of consent

Question 93

May an arresting officer issue a notice to appear for the violation of a misdemeanor?

Answer 93

Yes. However, a notice to appear may NOT be issued by the arresting officer if:

1. the accused fails or refuses to identify himself or supply required information;
2. the accused refuses to sign the notice to appearl;
3. the officer has reason to believe that continued liberty of the accused constitutes unreasonable risk of bodily harm to the accused or others;
4. the accused has no ties with the jurisdiction or there is substantial risk that he will refuse to respond to the notice;
5. the officer suspects that the accused may be wanted for another crime in any jurisdiction; or
6. it appears that the accused has previously failed to appear in response to notice