Quiz and Midterm Slides Flashcards
True or False:
Florida Supreme Court Has Exclusive Power to Adopt Rules of Practice and Procedure
True.
Article V, Section 2 Florida Constitution
The Florida legislature CANNOT infringe upon the exclusive rulemaking authority of the court.
Any Legislative Act Which Purports to Create or Modify a Procedural Rule of the Court Violates the Separation of Powers Set Forth in the Florida Constitution
What is substantive?
Part of the law which creates, defines, and regulates rights, or that part of the law which courts are established to administer.
Includes those rules and principles which fix and declare the primary rights of individuals with respect towards their persons and property
What is Procedural?
The course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion.
The method of conducting litigation involvingrights and corresponding defenses.
aka “machinery of the judicial process “
Pre-Suit Considerations
- Ripeness
- Notice of Claim
- Statutes of Limitations
Ripeness
All elements of a cause of action must exist and be complete before an action may properly be commenced.
True or False?
The dismissal with prejudice of a prematurely filed claim does not bar a subsequent action once the claim has ripened
True
True or False?
The dismissal on the pleadings of a prematurely filed claim constitutes an adjudication on the merits.
False
What have Florida courts done in cases where the premature element of an action is curable simply by the passage of time
Florida courts have generally disapproved dismissal of the action. Instead, the favored disposition is abatement of the action until the cause matures
What is the better course for the court to take when abatement of a prematurely filed action is not appropriate.
The better course is for the trial court to dismiss the action without prejudice instead of with prejudice
True or False?
The dismissal of a prematurely filed action after trial is on the merits and should be made with prejudice.
True. Under these circumstances, the doctrine of res judicata will bar a subsequent action
What is res judicata?
res judicata is the principle that a cause of action may not be relitigated once it has been judged on the merits.
Notice of Claim
Section 768.28(6)
Written notice is required to the department of insurance within three years of the accrual of the claim before suit may be filed against any state agency or subdivision except a municipality.
EACH claimant must give proper notice.
True or False?
Governmental entities cannot waive and cannot be estopped from asserting a statutory claim notice requirements
False.
What are the elements required for a waiver?
- Actual knowledge
- Pursuit of an Investigation
- Course of conduct that reasonably leads plaintiff to believe formal notice not necessary
- Detrimental Reliance by Plaintiff
A mere investigation by agents of a government entity standing alone NOT sufficient
What does “verification of pleadings” mean?
Verification Means That the Pleading Is Sworn to - UNDER OATH - by the Party.
It Means “I Solemnly Swear That This Is True…”
Does the Florida Rules require verification of pleadings?
No.
Rule 1.040
One Form of Action
- Actions at Law and Equity can be Merged into a Single Claim
- You Can File a Single Action Seeking Both Legal and Equitable Relief
Rule 1.050 - When is an Action Commenced?
Every action of a civil nature shall be deemed commenced when the complaint or petition is filed…
What are NOT factors with respect to commencement of action?
- Issuance of Process
- Failure to Pay Filing Fee
Statute of Limitations (SOL)
A statute of limitations (SOL) runs from the time the cause of action accrues which, in turn, is generally determined by the date when the last element constituting the cause of action occurs
What is the only way to beat the Statute of Limitations
Only way to beat the SOL is to file in a timely manner
Manifestation Theory
The four-year statute of limitations begins to run when the accumulated effects of the deleterious substance manifest themselves to the claimant in a way which supplies some evidence of a causal relationship to the manufactured product.
case of guy smoking-when harm became apparent
The multiple publication rule
The multiple publication rule should be applied to determine when the statute of limitations begins to run on the common law tort of credit slander.
The two-year statute of limitations in credit slander cases begins to run anew on each republication of the allegedly slanderous credit report.
Delayed discovery doctrine
Legal principle that delays the start of a statute of limitations until a plaintiff knows or should know about an injury or wrongdoing.
- May only be applied to the ACCRUAL of a cause of action, and not to tolling of statute of limitations.
- Is applicable to childhood sexual abuse cases.
Statute of Repose
Law that bars legal claims after a specific period of time has passed from a particular event, regardless of when the injury or damage occurred or was discovered, essentially cutting off the right to sue even if the harm is not yet known
Statute of Limitations v. Statute of Repose
Statute of Limitations: begins to run upon accrual of cause of action
Statute of Repose: runs from date of discrete act on part of defendant without regard to when cause of action accrued. It can eliminate a cause of action before it has accrued.
Choice of Law in personal injury action
In personal injury action, local law of state where injury occurred determines rights and liabilities of parties.
UNLESS, with respect to a particular issue, some other state has a more significant relationship to occurrence and parties, in which case local law of the other state will be applied.
Factors to determine significant relationship
- place where the injury occurred
- place where conduct causing injury occurred
- domicile, residence, nationality, place of incorporation, and place of business of parties, and
- place where relationship was centered
What is a Pleading?
A formal written document filed with a Florida court that outlines the claims, defenses, and legal arguments for a civil or criminal case.
Types of Pleadings
- complaint or petition
- third party complaint
- counter claim
- answer
- answer to crossclaim
- answer to counterclaim
- answer to third patty complaint, and
- reply
Reply-only in state court not in federal law
Rule 2.516 Service of Pleadings and Documents
When service is required or permitted to be made upon a party represented by an attorney, service must be made upon the attorney unless service upon the party is ordered by the court.
All documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides.
When is service by e-mail complete?
- Service by e-mail is complete on the date it is sent.
- If, however, the e-mail is sent by the Portal or other e-Service system, service is complete on the date the served document is electronically filed.
True or False?
Papers may NOT be served on a party’s attorney where the case is pending or not yet concluded.
False
Till when is a case pending?
A case is pending through and up to the datewhen the time for taking an appeal from the final judgment or dismissal has expired.
Rule 1.080(a) Service on parties against whom a default has been entered
“[n]o service need be madeon parties against whom a default has been entered EXCEPT that pleadings asserting new or additional claims against them shall be served in the manner provided for service ofsummons.”
Computing and Extending Time: Period stated in days
When the period is stated in days or a longer unit of time:
(A) begin counting from the next day that is not a Saturday,Sunday, or legal holiday;
(B) count every day, including intermediate Saturdays,Sundays, and legal holidays; and
(C) include the last day of the period.
Computing and Extending Time: Days
What happens if the last day is a Saturday, Sunday, or legal holiday, or falls within any period of time extended through an order of the chief justice?
The period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday and does not fall within any period of time extended through an order of the chief justice.
Computing and Extending Time: Period Stated in Hours
A) begin counting immediately on the occurrence of the event that triggers the period;
(B) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and
Computing and Extending Time: Hours
What if the period would end on a Saturday, Sunday, or legal holiday, or during any period of time extended through an order of the chief justice under Florida Rule of Judicial Administration 2.205(a)(2)(B)(iv)?
The period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday and does not fall within any period of time extended through an order of the chief justice.
Computing and Extending Time: Period Stated in Days Less than 7 Days.
When the period stated in days is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be EXCLUDED in the computation
What is “Enlargement”?
The court at any time in its discretion:
(A) with or without notice, may order the period enlarged ifrequest is made before the expiration of the period originally prescribed oras extended by a previous order, or
(B) upon motion made and notice after the expiration of thespecified period, may permit the act to be done when failure to act was the result ofexcusable neglect.
Examples of Excusable Neglect?
- Breakdown of calendar systems in attorney’s office
- Clerical or secretarial error
- Reasonable misunderstanding,
- A system gone awry
How do you establish excusable neglect?
Always Make Sure That You Have an Affidavit to Establish Good Cause/Excusable Neglect.
In what limited circumstances would service by USPS (a/k/a snail mail) be appropriate?
Upon motion and court order:
* lawyers who can demonstrate no internet or email address
* A party who is in custody and who is not represented by an attorney
* A pro-se litigant who can demonstrate no internet or email address
Venue: Where actions may begun
Actions shall be brought only:
* in the county where the defendant resides
* where the cause of action accrued, or
* where the property in litigation is located
Rule 47.021 Actions against defendants residing in different counties
Actions against two or more defendants residing in different counties may be brought in ANY county in which ANY defendant resides.
Rule 47.051Actions against corporations
Actions against domestic corporations shall be brought only:
* in the county where such corporation has, or usually keeps, an office for transaction of its customary business
* where the cause of action accrued, or
* where the property in litigation is located
Where should actions against foreign corporations doing business in the state be brought?
Actions against foreign corporations doing business in this state shall be brought:
* in a county where such corporation has an agent or other representative
* where the cause of action accrued, or
* where the property in litigation is located
True or False?
Under Florida common law, the state and its agencies or subdivisions enjoy a home venue privilege.
True. Venue in civil actions brought against the state or one of its agencies or subdivisions, absent waiver or exception, properly lies in the county where the state, agency, or subdivision, maintains its principal headquarters.
How many exceptions are to the home venue privilege?
Four:
1. statutory waiver of home venue privilege
2. actions in which the State entity allegedly acts as a “sword wielder”
3. actions in which the State entity allegedly acts joint tortfeasor; and
4. “good cause” petitions to access otherwise confidential public records
What does it mean to be the “sword wielder”?
doesn’t matter
It means that the official action that underpins the basis of the complaint occurs within the selected county, or there is an imminent threat of such action.
A suit seeking to take advantage of the sword-wielder exception can be filed outside the agency’s home venue only if:
* the primary purpose of the suit is to procure direct judicial protection from a purported unlawful invasion of the constitutional rights of a person within the county where the suit is commenced, and
* only if “the validity or invalidity of the statute, rule or regulation sought to be enforced comes into question only secondarily and incidentally to the main issue involved
True or False?
Venue cannot be waived if not raised in a motion or responsive pleading.
False
What is a Motion?
An application to the court for an order that must be made in writing unless made during a hearing or trial.
What must a Motion state?
A motion MUST:
* state with particularity the grounds for it, and
* set forth the relief or order sought
What is a Claim for Relief?
A claim for relief is a legal statement that a party makes in court to explain why they should win a case. It’s also known as a cause of action.
Types of Claims for Relief
- original claim
- counterclaim
- crossclaim
- third-party claim
A pleading which sets forth a claim for relief must state:
Must state a cause of action, and must contain:
* A short and plain statement of the grounds upon which the court’s jurisdiction depends.
* A short and plain statement of the ultimate facts showing that the pleader is entitled to relief, and
* A demand for judgment for the relief to which the pleader deems himself or herself entitled (special prayer, general prayer)
What is an “Answer”?
In the answer a pleader shall:
* state in short and plain terms the pleader’s defenses to each claim asserted, and
* shall admit or deny the assertions of the complaint
What if the defendant does not have knowledge on a particular claim?
If the defendant is without knowledge, the defendant shall so state and such statement shall operate as a denial.
What if the defendant intends in good faith to deny only a part of an assertion?
When a pleader intends in good faith to deny only a part of an assertion, the pleader:
* shall specify so much of it as is true, and
* shall deny the remainder.
What are the three potential responses to Plaintiff’s factual allegations in an Answer?
- Admit
- Deny
- Without knowledge
- Any allegations not denied are deemed admitted (except as to amount of damages)
- Any allegations denied are “in dispute”
What is an “Affirmative Defense”?
It is an AVOIDANCE.
The defendant asserts facts which, under the law, either justify or excuse their otherwise wrongful actions, or otherwise defeat the plaintiff’s claim. It limit or excuse a defendant’s civil liability.
Who has the burden of pleading and proving any affirmative defense?
The defendant.
Types of affirmative defenses
- accord and satisfaction
- arbitration and award
- assumption of risk
- contributory negligence
- duress
- estoppel
- failure of consideration
- fraud
- illegality
- injury by fellow servant
- laches
- license
- payment
- release
- res judicata
- statute of frauds
- statute of limitations
- waiver
Pleading Special Matters:
What matters are necessary to plead with specificity?
- Fraud or Mistake
- Special Damages
- Failure to Perform Conditions Precedent
What matters are NOT necessary to plead with specificity?
- capacity to sue
- malice
- intent
- knowledge
Defenses
Unless a different time is prescribed in a statute of Florida, a defendant must serve an answer within 20 days after service of original processand the initial pleading on the defendant
Answer when the state of Florida, an agency of the state, or an officer or employee of the state is the defendant.
Must serve an answer to the complaint or crossclaim, or a reply to a counterclaim, within 40 days after service (if cause of action is not a tort).
If cause of action is a tort, state must serve answer within 30 days after service. This is when sued pursuant to section 768.28.
What happens if the court denies a motion directed toward a complaint or postpones its disposition until the trial on the merits?
The responsive pleadings must be served within 10 days after the filing of the court’s order.
True or False:
The filing of a motion based on the 7 grounds listed in 1.140(b) tolls the time for serving an answer.
True.
7 grounds listed in 1.140(b)
(1) lack of subject matter jurisdiction,
(2) lack of jurisdiction over the person,
(3) improper venue,
(4) insufficiency of process,
(5) insufficiency of service of process,
(6) failure to state a cause of action, and
(7) failure to join indispensable parties.
True or False:
A party waives all defenses and objections that the party does not present either by motion or in a responsive pleading except as provided in Rule 1.140(h)(2)
True
How may Venue be waived?
Venue may be waived if not raised in a motion or responsive pleading.
How is Personal Jurisdiction waived?
Personal Jurisdiction may be waived if not raised in a motion or responsive pleading.
When can the defense of lack of subject matter jurisdiction be raised?
At any time.
Requirement for Sham Pleadings
- motion must be verified
- motion must be supported by affidavit or deposition testimony
- evidentiary hearing required
Compulsory Counterclaim
A counterclaim is compulsory if it arises out of the same transaction or occurrence that is the subject of the main claim.
* must be raised in original answer or in amended answer after leave of court.
* may be asserted for damages in excess of the amount claimed in the initial claim or action.
What happens if the demand of any counterclaim or clossclaim exceeds the jurisdiction of the court in which the action is pending?
The action must be transferred immediately to the court of the same county having jurisdiction of the demand in the counterclaim or crossclaim which only such alterations in the pleadings as are essential.
Rule 1.180 Third-party practice
A defendant can file third-party claim w/o leave of court within 20 day sof service of answer. Otherwise must obtain leave of court.
What does “without leave of court” means”?
“Without leave of court” means without permission from the court. This can apply to starting a legal proceeding, filing documents, or proceeding in a certain way.
True or False:
A third-party claim can be compulsory.
Falsw. A third-party claim is not compulsory.
True or False:
Claims agaisnt the third-party defendant are not waived if they are not asserted in a third-party claim.
True. They can be asserted in a subsequent action.
Rule 1.190 Amended and Supplemental Pleadings
A party may amend a pleading 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 onthe trial calendar, may so amend it at any time within 20 days after it is served.
True or False:
You cannot amend as a matter of course before a responsive pleading is served.
False.
What if no responsive pleading is permitted?
You can amend once as a matter of course if the case has not been placed on the trial calendar and it is within 20 days of the pleading that you wish to amend.
True or False:
You can amend with leave of court after motion or written consent of the adverse party.
True.
Relation Back
When the claim or defense arises out of the conduct, transaction or occurrence set forth in the original pleading, the amendment relates back to the date of the original pleading.
When does a claim or defense does NOT relate back?
If claim or defense:
* does not arise out of the conduct, transaction, or occurrence set forth in the original pleading.
* if the amended claim attemps to add a new party.
What are punitive damages?
Extra damages awarded to punish a defendant and deter future misconduct. They are awarded in addition to compensatory damages, which cover the plaintiff’s losses.
What must a motion for leave to amend a pleading to assert a claim for punitive damages have?
The motion must 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.
True or False:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they cannot be treated as if they had been raised in the pleadings.
False. They shall be treated in all respects as if they had been raised in the pleadings.
When and How issues not raised by the pleadings are tried?
At trial via an Ore Tenus Motion to amend the pleadings to conform to the evidence.
This can occur through express or implied consent of the opposing party
What objection should be made at trial for evidence presented on an issue that was not pled? And what would be a proper response to such objection?
Objection: Relevance/Materiality
Response to objection: Make an ore tenus (oral) motion to amend to conform the pleadings to the evidence.
Rule 1.210 Parties
Suit can be brought either as “real party in interest” or as a nominal or representative party.
True or False:
In a claim for personal injury of a minor, the claim must be brought by the parent or guardian of the minor. The parent or guardian becomes the real party in interest.
False:
The minor is the real party in interest.
Rule 1.230 Interventions
Anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.
Interest in the matter of the litigation, such that the intervenor will either gain or lose by direct legal operation and effect of the judgment.
Indirect, Inconsequential or contingent interest do not qualify.
What factors should the court consider in deciding whether or not to allow intervention under the test of “liberality”?
- size of the interest
- potential for conflict or new interests, and
- source of the interest
True or False:
Order denying the right to intervene is immediately appealable because it is a final determination of the rights of the intervenor.
True
True or False:
Failure to appeal the order denying the motion to intervene within 30 days is fatal
True
Rule 1.250 Misjoinder and Nonjoinder of parties
Misjoinder of parties is not a ground for dismissal of an action.
Any claim against a party may be severed and proceeded with separately.
What is a misjoinder?
Misjoinder refers to the improper joining of a party to a criminal or civil lawsuit.
Example: If a plaintiff sues a company for breach of contract and also includes an unrelated claim against an individual employee of the company, that employee may be considered misjoined.
Rule 1.270 Consolidation
When actions involving a common question of law or fact are pending before the court may order:
* a joint hearing or trial of any or all the matters in issue in the actions;
* all the actions consolidated; and
* it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay
Separate Trials
The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, crossclaim, counterclaim, or third-party claim or of any separate issue or of any number of claims, crossclaims, counterclaims, third-party claims, or issues.
When must a motion to consolidate be made?
Prior to trial
What must the court consider in deciding whether to consolidate cases?
- whether the litigation will be accelerated due to consolidation;
- unnecessary costs and delays;
- the possibility for inconsistent verdicts;
- whether consolidation would eliminate duplicative trials that involve substantially the same core of operative facts and questions of law; and
- whether consolidation would deprive a party of a substantive right.
True or False:
Consolidation is not appropriate where the actions are not concurrently pending before a court.
True.
True or False:
A trial court has the authority and jurisdiction to order the consolidation of an action pending before it with an action pending before another circuit court.
False. A trial court is without authority and jurisdiction to do that.
What must a party moving for separate trials establish?
Must establish that it will be prejudiced or inconvenienced.
Trial courts have wide discretion in determining whether to order separate trials.
True or False:
A court may bifurcate (divide) issues of liability and damages, trying the liability issues first and then, if necessary, determining the appropriate amount of damages.
True.
Upon request, Florida courts must grant a bifurcation of punitive damage claims
Rule 1.260-Survivor; Substitution of parties
In the event of death of one or more of the plaintiffs or defendant(s) in an action in which the right sought to be enforced survives, the action shall not abate (nullify, interrupt)
What to do if one of the parties die?
The death shall be suggested upon the record and the action shall proceed in favor or agaisnt the surviving parties.
Unless the motion for substitution is made within 90 days after the death is suggested upon the record, the action shall be dismissed as to the deceased party.
The motion for substitution may be made by ANY party.
What happens when a public officer is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office?
The action does not abate and the officer’s successor is AUTOMATICALLY substituted as a party.
Rule 1.240 Interpleader
Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability.
Requirement for Interpleader
Stakeholder must have reasonable and bona fide fear of exposure to multiple liability at time interpelader action is sought.
Complete the sentence:
Interpleader is a ….
…two-stage action.
2 stages in interpleader action
- trial court determines whether interpleader is proper (whether pl has stated a claim for interpleader)
- trial court determines who is actually entitled to the stake
How many stakeholders, claimants are in an interpleader action?
There must be ONE stakeholder, multiple claimants, and potential liability to ONLY one claimant.
Essential prerequisite to an interpleader
the stakeholder should actually be liable to ONLY one of the claimants
True or False:
Under Florida law, the reason for interpleader does not exist where a party has potential liabilities in varying amounts to several other parties.
True
What happens if the court determines that a claim for interpleader has been properly pleaded in step one?
It may deposit the stake into the court registry or oder alternative safekeeping
Initial Discovery Disclosure
Except as exempted, or ordered by court, a party must, without awaiting a discovery request, provide to the other parties the following initial discovery disclosures unless privileged or protected from disclosure:
- the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.
- ) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
- ) a computation for each category of economic damages claimed by the disclosing party and a copy of the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered;
- a copy of any insurance policy or agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment
Is a party required to provide computations of noneconomic damages?
A party is not required to provide computations as to noneconomic damages, but the party must identify categories of damages claimed and provide supporting documents.
Time for Initial Discovery Disclosures
A party MUST make the initial discovery disclosures within 60 DAYS AFTER THE SERVICE OF THE COMPLAINT or joinder, unless a different time is set by court order.
On what must a party base its initial discovery disclosures?
A party must make its initial discovery disclosures based on the information then reasonably available to it.
A party is not excused from making its initial discovery disclosures because:
- it has not fully investigated the case, or
- it challenges the sufficiency of another party’s initial discovery disclosures, or
- because another party has not made its discovery disclosures
True or False:
A party who formally objects to providing certain information is excused from making all other initital discovery disclosures required by this rule in a timely manner.
False. Is not excused
Calls for Automatic Disclosure
Disclosure requires parties to share their potentially relevant evidence w/o being requested by the other party.
If a party is NOT using the witnesses, documents or other evidence to “support its claims or defenses,” there is NO mandatory disclosure requirement.
Discovery: Supplementing of Responses
A party who has made disclosure or who has responded to an interrogatory, a request for production or a request for admission MUST supplement or correct its disclosure or response:
- in a timely manner if the party learns the disclosure is incomplete or incorrect.
- as ordered by the court.
Consequences for failing to disclose or supplement
- exclusion of witnesses/tangible evidence not disclosed
- Judge “may inform the jury” of a party’s failure to make discovery
When can you begin discovery?
A party may not seek discovery from any source before that party’s initial disclosure obligations are satisfied, except when authorized by stipulation or by court order.
Is there any order or sequence to discovery?
No
Discovery Methods
- Depositions upon oral examination or written questions;
- Written interrogatories
- Production of documents or things or permission to enter upon land or other property for inspection and other purposes;
- Physical and mental examinations;
- and requests for admission.
Discovery-not privileged
Parties may obtain discovery regarding:
* any matter, not privileged, that is relevant to the subject matter of the pending action,
* whether it relates to the claim or defense of the party seeking discovery
* or the claim or defense of any other party
What may nonprivileged discovery include?
existence of:
* description, nature, custody, condition, and location of any books,
* documents
* or other tangible things; and
* the identity and location of persons having knowledge of any discoverable matter.
Does the scope of discovery applies to work product?
No. Work product includes pre-suite and post-suit investigation conducted by a party, its agents, attorneys or investigators.
When is work product discoverable?
Work product is 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 w/o undue hardship to obtain the substantial equivalent of the materials by other means.
What is protected as work-product privilege?
- incident reports and accident reports are protected under attorney-client and work-product privilege.(settled under fl law)
- witness statements
- contents of insurance company claim
- surveillance video
- note that a party is entitled to a copy of his or her own settlement
True or false:
A party is entitled to a copy of his or her own statement
True.
True or false:
A witness is also entitled to a copy of her or his own statement upon request.
True
What is expert witness discovery?
A person qualified by knowledge, skill, experience, training, or education to give testimony in the form of an opinion
Examples of Expert Witness:
- accident reconstruction engineer
- mechanical engineer
- epidemiologist
- attorney
- CME Physician
Are treating doctors considered experts for the purpose of discovery?
Although they may render opinion testimony, treating doctors are NOT considered experts because experts for the purposes of 1.280.
True or False:
Experts who are expected to be called to testify at trial are not discoverable.
False. They are discoverable.
By interrogatories, what can a party require to any other party with regards to discovery?
By interrogatories, a party may require any other party to:
* identify each person whom the other party expects to call as an expert.
* witness at trial and to state the subject matter on which the expert is expected to testify, and
* to state the substance of the facts and opinions to which the expert is expected to testify, and
* a summary of the grounds for each opinion
True or False:
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 rule 1.390 w/o motion or order of court.
True.
A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial:
- the scope of employment in the pending case and the compensation for such service.
- the expert’s general litigation experience, including the % of work performed for plaintiffs and defendants.
- the identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.
What may an expert be required to produce under most unusual or compelling circumstances?
An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents
What you cannot get from the expert?
You cannot get the expert’s college transcripts, tax returns or annual earnings.
True or False:
The failure to file a privilege log can result in a waiver of the privilege.
True
True or False:
The best practice is to take chances on the issue of waiver.
False. Best practice is not to take any chances on the issue of waiver.
What is the best practice to assert claims to privilege?
Best practice is to timely assert claims to privilege in objections or a motion for protective order supported by an affidavit and a contemporaneous privilege log.
Protective Orders
Upon motion, and for good cause, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including that the discovery:
- not be had;
- may be had only on specified terms and conditions, including a designation of the time or place;
- may be had only by a method of discovery other than that selected by the party seeking discovery;
- that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
- be conducted with no one present except persons designated by the court;
- that a deposition after being sealed be opended only by order of the court;
- that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and
- that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
True or False:
As of January 1, 2025 there is an ABSOLUTE obligation to supplement under florida rule 1.280
True
Court filing of documents and discovery
Information obtained during discovery shall NOT be filed with the court until such time as it is filed for good cause
How is the requiement of good cause satisfied with regards of court filing documents and discovery?
The requirement of good cause is satisfied only where the filing of the information is allowed or required by another applicable rule of procedure or by court order.
Inadvertent disclosure of privileged materials
In order to assert privilege of inadvertent disclosure, the party, person, or entity, shall, within 10 days of actually discovering the inadvertent disclosure, serve written notice of the assertion of privilege on the party to whom the materials were disclosed
What must the notice of inandvertent disclosure specify?
The notice shall specify with particularity
* the materials as to which the privilege is asserted,
* the nature of the privilege asserted, and
* the date on which the inadvertent disclosure was actually discovered
What must a party receiving inadvertent disclosure notice of an assertion of privilege do?
shall promptly return, sequester, or destroy the materials specified in the notice, as well as any copies of the material.
he/she shall also promptly notify any other party, person or entity to whom it has disclosed the material of the fact that the notice bas been served and of the effect of this rule.
he/she shall also take reasonable steps to retrieve the materials disclosed.
Depositions before action or pending appeal
A person who desires to perpetuate that person’s or another person’s testimony may file a verified petition in the circuit court in the county of the residence of any expected adverse party. The petition shall show:
- that the petitioner expects to be a party to an action in a court of FL, but it’s unable to bring it or cause it to be brought,
- the subject matter of the expected action and the petitioner’s interest therein,
- the facts which the petitioner desires to establish by the proposed testimony and the petitioner’s reasons for desiring to perpetuate it,
- the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and
- the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each;
and shall ask for an order authorizing the petitioner to take the deposition.
True or False:
A petition to take deposition pre-suit does not need to be verified.
False. A petition to take deposition pre-suit must be verified.
Depositions upon oral examination
A DEFENDANT can take depositions at any time after it has been served.
True or False:
Absent leave of court, a PLAINTIFF cannot take depositions during the 30-day period following service of initial process upon any defendant.
True. The 30-day period runs from service of process rather than commencement of the action.
Can non-parties be deposed?
Yes, but a non-party must be served with a witness subpoena before being required to appear for a deposition
Is leave of court required to take the deposition of a person in prison?
Yes.
True or False:
A party wishing to take a deposition does not need to give notice to the other parties, only to the court.
False. A party wishing to take a deposition must give notice to the other parties.
How much advance notice does a party wishing to take a deposition must give to the other parties?
The rules requires “reasonable” notice, it does not specify what constitutes “reasonable” notice.
True or False:
Absent a showing of good cause, a plaintiff is generally required to be deposed in the forum in which the action is pending.
True.
What is the best practice when representing a non-resident plaintiff for a deposition?
BEST PRACTICE when representing a non-resident plaintiff is to file a motion for protective order requesting that the deposition in Florida be coordinated to take place in Florida in conjunction with mediation and any CME requested by the defendant
Is a defendant who is not seeking affirmative relief required to travel to be deposed by the plaintiff?
No. A defendant who is not seeking affirmative relief will not be required to travel to be deposed by the plaintiff.
True or False:
The deposition of a corporate representative for a corporation not seeking affirmative relief is to be taken in the county where the corporation has its principal place of business
True
Can a non-party witness be required to attend a deposition?
Yes, but only in the county wherein the person resides or is employed or transacts business in person.
What is a duces tecum deposition?
A deposition duces tecum is a court order that requires a witness to appear at a deposition and bring documents or records to be used as evidence. The term “duces tecum” means “subpoena for production of evidence”.
How many days in advance notice you should give for a duces tecum deposition?
30 days
Deposition of an entity
- it obligates the entity to designate 1 or more witnesses to speak on its behalf
- Notice for taking deposition should follow the language of the rule
- must provide “reasonable particularity” for the designated topics
True or False:
Rule 1.310(b)(6) requires that the corporation produce the witness with the “most knowledge” on the specified topics.
False. The witness is NOT required to possess any personal knowledge at all.
Requirements for the corporation to be deposed
- corporation is required to educate its designated witness regarding all topics
- organization must prepare the designee to the extent matters are reasonably available, whether from documents, past employees, or other sources
- organization must prepare the witness to speak as “the voice” of the corporation
What happens if the deponent cannot answer questions regarding the designated subject matter?
The corporation has failed to comply with rule 1.310(b)(6) obligation and may be subject to sanctions
Can you depose additional corporate officers after taking the deposition of the corporate representative?
Yes.
Notice of video recording of deposition testimony
Notice must state that the deposition will be recorded by video and also give the name and address of the videographer.
“communication technology” rule
rule allows depositions by “communication technology” by stipulation of the parties, motion of a party, or sua sponte order by the court.
witnesss must be put under oath as provided in FL Rule of General Practice and Judicial Administration, by a person who is not physically present with the witness, if the person is authorized to administer oaths in the state of FL.
“communication technology” deposition with a witness not located in FL
Witness must consent to be bound by an oath administered under the general laws of the state of Florida.
Deposition of a Minor
You cannot exclude the parents/guardians of a minor w/o a court order upon a showing of good cause.
Objections during a deposition
Any objection during a deposition must be stated concisely and in a nonargumentative and nonsuggestive manner.
When may a party instruct a deponent not to answer in a deposition?
When is necessary to:
* preserve a privilege
* enforce a limitation on evidence directed by the court; or
* present a motion under subdivision (d).
True or False:
Evidence objected to on a deposition must be taken subject to the objections.
True.
True or False:
Any objections other than to the form of the questions are not reserved.
False. Any objection other than to the form of the question are reserved.
