Final-Review Flashcards
(281 cards)
1
Q
Who has the power to adopt rules of practice and procedure in Florida?
A
Florida Supreme Court Has Exclusive Power to Adopt Rules of Practice and Procedure.
Article V, Section 2 Florida Constitution: The Florida legislature CANNOT infringe upon the exclusive rulemaking authority of the court.
2
Q
True or False:
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.
A
True.
3
Q
What is substantive law?
A
Substantive law has been defined as that part of the law which creates, defines, and regulates rights, or that partof the law which courts are established to administer.
It includes those rules and principles which fix and declare the primary rights of individuals with respect towards theirpersons and property.
4
Q
What is procedural law?
A
Practice and procedure encompass the course, form, manner, means,method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion.
it’s the machinery of the judicial process as opposed to the product thereof. It is the method of conducting litigation involvingrights and corresponding defenses.
5
Q
Pre-Suit Considerations: Ripeness
A
All elements of a cause of actionmust exist and be complete before an action may properly be commenced.
6
Q
True or False:
The dismissal with prejudice of aprematurely filed claim may bar a subsequent action oncethe claim has ripened
A
False. The dismissal with prejudice of aprematurely filed claim does not bar a subsequent action oncethe claim has ripened.
7
Q
True or False:
The dismissal on the pleadings of aprematurely filed claim does not constitute an adjudication on the merits.
A
True.
8
Q
Is a case dismissed because it has a premature element?
A
No. In cases where the premature element of an action is curable simply by thepassage of time, Florida courts have generally disapproveddismissal of the action.
Instead, the favored disposition isabatement of the action until the cause matures.
9
Q
What is abatement?
A
A pause until the defect is cured.
10
Q
What is the better course to take if abatement of a prematurely filed action is not appropriate?
A
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.
11
Q
When is the dismissal of a prematurely filed action made with prejudice?
A
The dismissal of a prematurely filed action after trial is on the merits and should be made with prejudice.Under these circumstances, the doctrine of res judicata will bar a subsequent action
res judicata = bars parties from relitigating claims that have already been decided in a final judgment on the merits. It prevents parties from repeatedly suing over the same cause of action, even if they could have presented the claim in an earlier lawsuit.
12
Q
Notice of Claim 768.28
A
Section 768.28(6) requires written notice to the department within three years of the accrual of the claim before suit may be filed against anystate agency or subdivision except against a municipality, county, or the Florida Space Authority.
EACH claimant must give theproper notice.
13
Q
True or False:
Governmental entities shall not waive or be estopped from asserting statutory claim notice requirements.
A
False. Governmental entities may waive or be estopped from asserting statutory claim notice requirements.
14
Q
Elements required for waiver of claim notice include:
A
- 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 agovernment entity standing alone NOT sufficient.
15
Q
What does it mean for a pleading to be verified?
A
Verification Means That the Pleading Is Sworn to - UNDER OATH - by the Party
16
Q
True or False: All pleadings in Florida must be verified.
A
False. With a few exceptions, the Florida Rules DO NOT require verification of pleadings.
17
Q
Rule 1.040One Form of Action
A
Actions at Law and Equity are Merged into a Single Claim.
You Can File a Single Action Seeking Both Legal and Equitable Relief.
18
Q
Rule 1.050 - When Action Commenced
A
Every action of a civil nature shall be deemed commenced when thecomplaint or petition is filed.
Issuance of Process is Not a Factor in Commencement of Action.
19
Q
True or False:
Failure to Pay Filing Fee precludes to the commencement of an action.
A
False. Failure to Pay Filing Fee Not a Factor with Respect to Commencement.
20
Q
When must a summons or complaint be served?
A
The summons and complaint summons must be served within 120 days after filing of the initial pleading directed to that defendant
21
Q
Statute of Limitations
A
A statute of limitations runs from the timethe cause of action accrues which, in turn, isgenerally determined by the date when the last element constituting the cause of action occurs.
22
Q
Statute of Repose
A
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
23
Q
Statute of Limitations v. Statute of Repose
A
statute of limitations - defines the time within which a claim must be filed after a cause of action accrues (like an injury or defect is discovered)
statute of repose - sets an absolute deadline for filing any claim related to a specific project, regardless of when the cause of action arose
Statute of repose can eliminate a cause of action before it has accrued
24
Q
Choice of Laws
A
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.
25
Factors to determine significant relationship to occurrence and parties for the choice of laws to use:
1. place where the injury occured
2. place where conduct causing injury occurred,
3. domicile, residence, nationality, place of incorporation, and place of business of parties, and
4. place where relationship was centered
26
Service of Pleadings
Every pleading subsequent to the initial pleading, all orders, and every other document filed in the action **must** be served in conformity with the requirements of Florida Rule of Judicial Administration 2.516.
27
Rule 2.516. Service of Pleadings and Documents
Who do I serve?
Service must be made upon the attorney unless service upon the party is ordered by the court.
All documents to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides.
28
True or False:
Service by e-mail is complete on the date it is received.
False. 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.
29
Till when is a case pending?
A case is pending through and up to the date when the time for taking an appeal from the final judgment or dismissal has expired.
30
Computation of Time:
When the period is stated in days or a longer unit of time.
1. begin counting from the next day that is not a Saturday, Sunday, or legal holiday;
2. count every day, including intermediate Saturdays, Sundays, and legal holidays; and
3. include the last day of the period,
31
Period stated in days or longer unit of time:
What happens if the last day is a Saturday, Sunday or holiday?
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 under Florida Rule of Judicial Administration 2.205(a)(2)(B)(iv), 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.
32
Computation of Time:
Period Stated in Hours
1. begin counting immediately on the occurrence of the event that triggers the period;
2. count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and
3. 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.
33
Computation of Time:
Period Stated in Days Less Than Seven Days.
When the period stated in days is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be EXCLUDED in the computation.
34
Enlargement
Period of time enlarged.
The court at any time in its discretion with or without notice, may order the period enlarged if request:
1. is made before the expiration of the period originally prescribed or,
2. as extended by a previous order, or
3. upon motion made and notice after the expiration of the specified period, may permit the act to be done *when failure to act was the result of excusable neglect*.
35
What Constitutes Excusable Neglect for Enlargment?
* Breakdown of the tickler and calendar systems in attorney’s office.
* Clerical or secretarial error
* Reasonable misunderstanding
36
Enlargement: How do you establish excusable neglect?
Always Make Sure That You Have an Affidavit to Establish Good Cause/Excusable Neglect.
37
Extra time when service is made by email v. snail mail
You do **NOT** get extra time added after service by **email**
You **DO** get 5 extra days added after service by **snail mail**
BUT Rule 2.514 requires All documents to be served by e-mail
38
In what limited circumstances would service by USPS (a/k/a snail mail) be appropriate?
1. Upon motion and court order, lawyers who can demonstrate no internet or email address
2. A party who is in custody and who is not represented by an attorney is excused from the requirements of e-mail service
3. A pro-se litigant who can demonstrate no internet or email address
39
Venue
Actions shall be brought only
1. in the county where the defendant resides,
2. where the cause of action accrued, or
3. where the property in litigation is located.
40
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.
41
Venue: Actions against corporations
Domestic Corporation:
Actions against domestic corporations shall be brought only
1. in the county where such corporation has, or usually keeps, an office for transaction of its customary business,
2. where the cause of action accrued, or
3. where the property in litigation is located.
Foreign Corporation:
Actions against foreign corporations doing business in this state shall be brought
1. in a county where such corporation has an agent or other representative,
2. where the cause of action accrued, or
3. where the property in litigation is located.
42
True or False:
Under Florida common law, the state and its agencies or subdivisions enjoy a home venue privilege.
True
43
Venue in civil actions brought against the state or one of its agencies or subdivisions:
absent waiver or exception, venue properly lies in the county where the state, agency, or subdivision, maintains its principal headquarters.
44
The home venue privilege is subject to four specific exceptions:
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
sword wielder = state is the party allegedly taking an unlawful action that directly infringes on the plaintiff's constitutional rights, especially if that action or threat of action occurs in the county where the suit is filed.
45
True or False:
Venue May Be Waived If Not Raised in A Motion Or Responsive Pleading.
True
46
What are pleadings?
Pleadings are formal written statements filed with a court by parties involved in a lawsuit, outlining their claims, defenses, and legal positions.
47
Types of Pleadings
1. Complaint/Petition
2. Third Party Complaint
3. Counterclaim
4. Answer
5. Answer to Crossclaim
6. Answer to Counterclaim
7. Answer to Third Party Complaint
8. Reply
48
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.
A motion MUST:
1. state with particularity the grounds for it
2. set forth the relief or order sought
49
Claims for Relief
A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim, must state a cause of action and shall contain:
1. A short and plain statement of the grounds upon which the court’s jurisdiction depends
2. A short and plain statement of the ultimate facts showing that the pleader is entitled to relief, and
3. A demand for judgment for the relief to which the pleader deems himself or herself entitled
50
What you must know for a claim of relief?
You Need to:
1. Know the elements of your cause of action, and
2. Allege the ultimate facts that are the basis for each element.
51
In addition of knowing the elements of your cause of action and the ultimate facts that are the basis for each element, what else does your complaint or petition need to contain?
A demand for judgment for the relief to which the pleader deems himself or herself entitled.
Every complaint shall be considered to pray for general relief.
A party should plead each distinct claim in a separate count, rather than plead the various claims against all of the defendants together.
52
The Answer
In the answer a pleader shall:
1. state in short and plain terms the pleader's defenses to each claim asserted and
2. admit or deny the averments on which the adverse party relies.
53
What should a defendant state in the answer if he/she is without knowledge?
If the defendant is without knowledge, the defendant shall so state and such statement shall operate as a denial.
54
What if a defendant intends in good faith to deny only part of an averment?
When a pleader intends in good faith to deny only a part of an averment, the pleader shall specify so much of it as is true and shall deny the remainder.
55
Three potential responses to Plaintiff's factual allegations in an Answer:
1. Deny
2. Admit
3. Without Knowledge (a denial)
Any allegations not denied are deemed admitted (except as to amount of damages).
Any allegations denied are in dispute.
56
What is an affirmative defense?
An affirmative defense is a fact or set of facts other than those alleged by the plaintiff which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's otherwise unlawful conduct
It is an AVOIDANCE.
57
True or False: Affirmative defenses limit or excuse a defendant's civil liability
True. In other words, an affirmative defense is a “so, what? Even if your allegations are true, it’s not my problem.” Or it’s LESS of a problem
58
In an affirmative defense, what does the defendant asserts?
In an affirmative defense, the defendant asserts facts which, under the law, **either justify or excuse their otherwise wrongful actions, or otherwise defeat the plaintiff's claim.**
59
The Plaintiff has the burden of pleading and proving any affirmative defense.
False. The defendant has the burden of PLEADING and PROVING any affirmative defense.
60
Affirmative Defenses
1. accord and satisfaction
2. arbitration and award
3. assumption of risk
4. contributory negligence
5. duress
6. estoppel
7. failure of consideration
8. fraud
9. illegality
10. injury by fellow servant
11. laches
12. license
13. payment
14. release
15. res judicata
16. statute of fraud
17. statute of limitations; and
18. waiver
61
Rule 1.120 Pleading Special Matters
(plead with specificity)
It is necessary to plead the following with specificity:
1. Fraud or Mistake
2. Special Damages
3. Failure to Perform Conditions Precedent
62
It is NOT necessary to plead the following with specificity:
1. Capacity to sue
2. Malice
3. Intent
4. Knowledge
63
True or False:
Evidence of special damages is admissible even though those damages are not pled in the complaint.
False. Evidence of special damages is INADMISSIBLE if those damages are not pled in the complaint.
64
Serving of an Answer
Unless a different time is prescribed in a statute of Florida, a defendant must serve an answer within 20 days after service of original process and the initial pleading on the defendant.
65
True or False
When sued pursuant to section 768.28, Florida Statutes, the Department of Financial Services or the defendant state agency has 40 days from the date of service within which to serve an answer to the complaint or crossclaim or a reply to a counterclaim.
False. 30 days if it's a tort. 40 days if it's not a tort.
66
When must a responsive pleading be served if the court denies a motion directed toward a complaint or postpones its disposition until the trial?
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
67
The Filing of a Motion Based on the 7 Grounds Listed in 1.140 (b) Tolls the Time for Serving an Answer.
True
68
What are the 7 grounds listed in 1.140(b) that tolls the time for serving an answer?
1. lack of subject matter jurisdiction
2. lack of personal jurisdiction
3. improper venue
4. insufficiency of process
5. insufficiency of service of process
6. failure to state a claim
7. failure to join inidspensable parties
69
True or False:
A party waives all defenses but not the objections that the party does not present either by motion or in a responsive pleading.
False. A party waives all defenses **and** objections that the party does not present either by motion under subdivisions (b), (e), or (f) of Rule 1.140 or, if the party has made no motion, in a responsive pleading except as provided in Rule 1.140(h)(2)--def. of subj matter juris.
70
True or False: The defense of lack of jurisdiction of the subject matter may be raised at any time.
True.
71
What may be waived if not raised in a motion or responsive pleading?
1. Venue
2. Personal Jurisdiction
72
Rule 1.150 Sham Pleadings
In Florida, a "sham pleading" is a pleading that is clearly false and presented without good faith.
Motion must be:
1. verified
2. supported by affidavit or deposition testimony
Evidentiary hearing required
73
Rule 1.170 Counterclaims and Crossclaims
Counterclaim: claim by a defendant against the plaintiff in a lawsuit ( a suit back).
Crossclaim:claim brought by one party against another party who is already involved in the same lawsuit, but on the same side (e.g., one defendant against another defendant)
A counterclaim is against the opposing side, while a crossclaim is against a co-party.
74
Compulsory Counterclaims
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.
Counterclaim May Be Asserted for Damages in Excess of the Amount Claimed in the Initial Claim or Action
75
For how long can a Defendant file a 3rd party claim w/o leave of court?
A Defendant Can File Third-Party Claim without Leave of Court **within 20 days of Service of Answer**.
Otherwise Must Obtain Leave of Court
76
True or False:
A third party claim is a type of compulsory claim
False. A Third-Party Claim Is Not Compulsory.
77
True or False:
Claims against the 3rd party defendant are not waived if they are not asserted in a 3rd party claim.
True. They can be asserted in a subsequent action.
78
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 on the trial calendar, may so amend it at any time within 20 days after it is served.
You can amend as a matter of course (w/o court's permission) before a responsive pleading is served.
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.
79
True or False:
You can amend without leave of court after motion or written consent of the adverse party.
False. You can amend WITH leave of court.
80
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.
81
True or False:
If the amended claim attempts to add a new party, it does not relate back.
True
82
Punitive Damages
A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages.
83
True or False:
Amendments to conform to the evidence:
When issues not raised by the pleadings are tried by **express or implied consent** of the parties, they shall be treated in all respects as if they had been raised in the pleadings.
True.This Happens at Trial Via an Ore Tenus Motion to Amend the Pleadings to Conform to the Evidence.
Ore Tenus Motion = motion is made orally in the course of a hearing or trial.
84
What Objection Should Be Made at Trial for Evidence Presented on an Issue That Was Not Pled?
Relevance/Materiality
85
What is the proper response to a relevance/meriality objection that is made at trial for evidence not presented on an issue that was not pled?
The proper response to such an objection is to make an ore tenus (oral) motion to amend to conform the pleadings to the evidence
86
Rule 1.210 Parties
Suit Can Be Brought Either As "Real Party in Interest" or As a Nominal or Representative Party
87
Real party in interest v. Nominal party
real party in interest = individual or entity who has a direct and substantial interest in the outcome of a lawsuit and will benefit from it if successful.
nominal party = included in a lawsuit for legal or technical reasons, such as a personal representative in a wrongful death case, but may not have a real interest or control over the litigation.
88
True or False:
Although a claim for personal injury of a minor child must be brought by the parent or guardian of the minor, the MINOR is the real party in interest
True
89
Rule 1.230 Interventions
Anyone claiming an interest in pending litigation can intervene if their interest is direct and immediate, meaning they will either gain or lose from the judgment.
Indirect, Inconsequential or Contingent Interests Do Not Qualify
90
What factors should the court consider in deciding whether or not to allow intervention under the test of "liberality"?
1. size of the interest
2. potential conflict or new interests, and
3. source of the interest
91
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
92
True or False
Failure to Appeal the Order Denying the Motion to Intervene within 30 Days Is Fatal
True
93
Rule 1.250 Misjoinder and nonjoinder of parties
misjoinder = incorrect inclusion of a party in a lawsuit
nonjoinder = failure to include a necessary or proper party
Misjoinder of parties is not a ground for dismissal of an action. Any claim against a party may be severed and proceeded with separately.
Misjoined Claims May Be Severed and Proceeded with Separately.
94
Rule 1.270 Consolidation
When actions involving a common question of law or fact are pending before the court, it may:
1. order a joint hearing or trial of any or all the matters in issue in the actions;
2. order all the actions consolidated; and
3. make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay
95
Situations where the court may order separate trials and not consolidate:
1. convenience
2. avoid prejudice
96
When must a motion to consolidate be made?
Motions to Consolidate Must be Made Prior to Trial
97
What does the court considers in deciding whether to consolidate cases:
1. whether litigation will be accelerated due to the consolidation;
2. unnecessary costs and delays;
3. the possibility for inconsistent verdicts;
4. whether consolidation would eliminate duplicative trials that involve substantially the same core of operative facts and questions of law; and
5. whether consolidation would deprive a party of a substantive right.
98
When is consolidation not appropriate?
Where the actions are not concurrently pending before a court.
99
True or False:
A trial court may 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 order the consolidation of an action pending before it with an action pending before another circuit court
100
What does a party seeking separate trials need to establish?
A party moving for separate trials must establish that it will be **prejudiced or inconvenienced**.
101
True or False
Trial courts have wide discretion in determining whether to order separate trials
True
102
Granting Separate Trials to Bifurcate Liability and Damages Determinations
Bifurcate = splitting the trial in 2 phases
A court may bifurcate issues of liability and damages, trying the liability issues first and then, if necessary, determining the appropriate amount of damages.
103
True or False:
Upon Request, Florida Courts may Grant a Bifurcation of Punitive Damage Claims
False. Upon Request, Florida Courts **MUST** Grant a Bifurcation of Punitive Damage Claims.
Bifurcation aims to prevent juries from being swayed by evidence regarding a defendant's financial situation or harm to others when deciding liability and compensatory damages. This evidence is typically only relevant to the amount of punitive damages.
104
Rule 1.260-Survivor; Substitution of Parties
If a plaintiff or defendant dies and the right to enforce survives only to the surviving parties, the action will not abate.
The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties
abate = removed
105
How much time do you have to file a motion for substitution of parties after someone files a suggestion of death?
90 days. Motion to substitute MUST be made within 90 days of the suggestion of death.
The motion for substitution may be made by ANY party
106
What happens when a public officer who is a party to an action in an official capacity dies or resigns?
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.
107
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 multiple liability.
108
Requirement for Interpleader
Stakeholder Must Have Reasonable and Bona Fide Fear of Exposure to Multiple Liability at Time Interpleader Action Is Sought
109
2 stages of an interpleader action
The trial court determines:
1. Whether interpleader is proper—i.e., whether the plaintiff has stated a claim for interpleader.
2. Who is actually entitled to the stake.
110
True or False:
For interpleader actions, there must be one stakeholder, and one claimant who is potentially liable.
False. There must be ONE stakeholder, **multiple claimants**, and potential liability to ONLY one claimant
111
True or False:
An essential prerequisite to an interpleader is that the stakeholder should actually be liable to ONLY one of the claimants.
True.
112
Initial Discovery Disclosure
A party must provide the following initial discovery disclosures to other parties, unless privileged or protected:
(A) Names and contact info of individuals with relevant information, unless for impeachment.
(B) Documents and items supporting claims or defenses, unless for impeachment.
(C) Damage computations and supporting documents, excluding noneconomic damages.
(D) Any relevant insurance policy related to potential judgments.
113
Time for Initial Discovery Disclosures.
A party must provide initial discovery disclosures within 60 days of serving the complaint or joinder, unless the court specifies a different timeframe.
114
True or False:
A party must make its initial discovery disclosures based on the information then reasonably available to it.
True
115
True or False:
The only reasons a party may be excused from making its initial discovery disclosures are:
1. because it has not fully investigated the case
2. because it challenges the sufficiency of another party’s initial discovery disclosures, or
3. because another party has not made its initial discovery disclosures
False. **A party is not excused** from making its initial discovery disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s initial discovery disclosures or because another party has not made its initial discovery disclosures.
116
Rule 1.280 Calls for Automatic Disclosure
If a party is NOT using the witnesses, documents or other evidence to “support its claims or defenses,” there is NO mandatory disclosure requirement.
117
Rule 1.280(g) Supplementing of Responses (Discovery)
A party that has made a disclosure or responded to interrogatories, requests for production, or requests for admission must supplement or correct its disclosure or response:
1) **In a timely manner**, if it learns that the information is incomplete or incorrect and hasn't been shared with other parties; or
2) As ordered by the court.
118
Consequences for Failing to Disclose or Supplement
The Judge "MAY INFORM THE JURY" of a party's failure to make discovery.
Also, sanctions.
119
When can you begin discovery?
A party cannot seek discovery from any source until it fulfills its initial disclosure obligations, unless permitted by stipulation or court order.
120
Is there any order or sequence to discovery?
No. Methods of discovery may be used in any sequence, unless the parties stipulate or the court orders otherwise.
121
Discovery methods:
* Depositions upon oral examination or written questions.
* Written interrogatories
* Production of documents or things, or permisson to enter land or property for inspection
* Physical and mental examinations, and
* Requests for admission
122
What does the scope of discovery does not apply to?
Work Product.
123
What does work product includes?
Work product includes pre-suit and post-suit investigation conducted by a party, its agents, attorneys or investigators.
124
When is work product discoverable?
When a party seeking discovery has need of the materials in prepartion of the case and is unable w/o undue hardship to obtain the information.
125
Under Florida law, what is protected as work product?
1. incident and accident reports
2. surveillance video
3. witness statements
4. contents of insurance claim files
126
Who is entitled to a copy of his/her own statement?
A party is entitled to a copy of his or her own statement.
A witness is also entitled upon request.
127
Expert Witness Discovery:
What is an expert witness?
A person qualified by knowledge, skill, experience, training, or education to give testimony in the form of an opinion
128
Example of an expert witness:
1. accident reconstruction engineer
2. Mechanical engineer
3. Epidemiologist
4. Attorney
5. CME physician
cme = compulsory medical examinations
129
True or False:
Treating doctors are considered experts, but they must not render opinion testimony.
False. Although They May Render Opinion Testimony, Treating Doctors Are NOT Considered Experts for the Purposes of 1.280
130
True or False:
Experts who are expected to be called to testify at trial are discoverable.
True
131
What may a party require any other party through interrogatories?
A party may use interrogatories to require another party **to identify expert witnesses for trial**, including the subject matter, facts, opinions they will testify about, and a summary of the grounds for each opinion.
Any person disclosed may be deposed w/o motion or court order.
132
What discovery may a party obtain through interrogatories regarding any person disclosed?
1. scope of employment in the pending case and the compensation for such service
2. the expert's general litigation experience, including the % of work performed for plaintiff's and defendants
3. the identity of other cases, within a reasonable period, in which the expert has testified by deposition or at trial.
133
True or False:
You cannot get the expert's college transcripts, tax returns or annual earnings.
True
134
1.280 (b) (6) Claims of Privilege or Protection of Trial Preparation Materials
Best Practice is to Timely Assert Your Claims to Privilege in Objections or a Motion for Protective Order Supported by an Affidavit and a Contemporaneous Privilege Log
135
1.280 (c) Protective Orders.
The court may issue orders to protect parties from annoyance, embarrassment, oppression, or undue burden during discovery, including:
1. Denying the discovery.
2. Imposing specific terms and conditions, including time or place.
3. Allowing a different method of discovery.
4. Limiting inquiries or the scope of discovery.
5. Restricting attendance to designated persons.
6. Sealing depositions until court order to open.
7. Protecting trade secrets or confidential information from disclosure or limiting how it's disclosed.
8. Requiring simultaneous filing of documents in sealed envelopes to be opened as directed.
136
1.280 (g) 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.
good cause = where the filing of the information is allowed or required by another applicable rule of procedure or by court order
137
Rule 1.285 Inadvertent disclosure of privileged materials
Any party, person, or entity that inadvertently discloses materials may assert privilege regarding those materials.
138
How to assert inadvertent disclosure privilege?
1. Party shall within 10 days of discovering the inadvertent disclosure, serve written notice of the assertion of privilege on the party to whom the materials were disclosed.
2. 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 discovered.
139
What must the party receiving the notice of inadvertent disclosure do?
The party shall:
1. promptly notify any other party to whom it has disclosed the materials, that a notice has been served, and the effect of the rule.
2. take reasonable steps to retrieve the materials disclosed.
140
Rule 1.290 Depositions before action or pending appeal
A person wanting to preserve their testimony or that of another related to a matter in this state's courts may file a verified petition in the circuit court of the county where the opposing party lives.
141
What must the petition to take a deposition pre-suit include?
The petition must be titled in the petitioner's name and include:
1. The petitioner's expectation of being a party to a Florida court action, but currently unable to initiate it.
2. The subject matter of the expected action and the petitioner's interest.
3. The facts the petitioner wishes to establish through testimony and reasons for wanting to preserve it.
4. Names or descriptions of expected adverse parties and their known addresses.
5. Names and addresses of persons to be examined, along with the expected testimony from each.
The petition should request an order to take the depositions of the named individuals for the purpose of perpetuating their testimony.
142
A petition for depositions pre suit must be verified. What does that mean?
It has to be signed, and under oath.
143
Rule 1.310 Depositions upon oral examination
A DEFENDANT can take depositions at any time after it has been served
A PLAINTIFF cannot take depositions during the 30-day period following service of initial process upon any defendant
*The 30-day period runs from service of process rather than commencement of the action*
144
Can a non-party be deposed?
Yes. Non-party must be served with a witness subpoena before being required to appear for a deposition.
145
True or False:
Leave of court is required to take the deposition of a person in prison.
True
146
Must a party wishing to take a deposition provide notice to the other parties?
Yes. A party wishing to take a deposition must give notice to the other parties. Rule 1.310 requires “reasonable” notice of depositions.
147
Where is the plaintiff generally required to be deposed?
Absent a showing of good cause, a plaintiff is generally required to be deposed **in the forum in which the action is pending.**
148
What is the best practice when representing a non resident plaintiff regarding depositions?
Best practice is to: file a motion for protective order requesting that the deposition in FL be coordinated to take place in FL in conjunction with mediation and any CME requested by the defendant.
149
True or False:
A defendant is required to travel to be deposed by the plaintiff, even if the defendant is not seeking affirmative relief.
False. A defendant who is not seeking affirmative relief will not be required to travel to be deposed by the plaintiff.
149
Where does a deposition for a corporate representative not seeking affirmative relief take place?
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.**
150
True or False:
A non-party witness can be required to attend a deposition only in the county wherein the person resides or is employed or transacts business in person.
True
151
Production of Documents at Deposition
You should give 30 days advance notice for a duces tecum deposition.
duces tecum = requires a witness to appear at a deposition and bring specific documents or evidence.
152
Deposition of an Entity
Entity must designate 1 or more witnesses to speak on its behalf.
Notice must provide topics with reasonable particularity.
witness is not required to possess any personal knowledge or the most knowledge on the specified topics.
Corporation is required to educate its designated witness regarding all topics
153
What happens if the deponent on behalf of a corporation cannot answer questions regarding the designated subject matter?
If The Deponent Cannot Answer Questions Regarding The Designated Subject Matter, “The Corporation Has Failed To Comply With Its Rule 1.310(b)(6) Obligation And May Be Subject To Sanctions”
154
True or False:
You cannot depose additional corporate officers after taking the deposition of the corporate representative.
False; you can.
155
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.
156
Rule 1.310(b)(7) Communication Technology
communicaton technology = audio or video conferencing.
The Rule Allows Depositions by “Communication Technology” by:
* Stipulation of the Parties,
* Motion of a Party, or
* Sua Sponte Order by the Court
157
True or False
When A Deposition Is Being Taken By Communication Technology, the Witness Must Be Put Under Oath.
True
158
Who can administer an oath to a witness testifying through communication technology?
An Oath May Be Administered To A Witness Testifying Through Audio-video Communication Technology **By A Person Who Is Not Physically Present With The Witness**…
159
What happens if a deposition is taken place through communication technology and the witness is not located in the state of Florida?
If The Witness Is Not Located In The State Of Florida, **The Witness Must Consent To Be Bound By An Oath Administered Under The General Laws Of The State Of Florida**
160
Rule 1.310(b)(8) Deposition of a Minor
You CANNOT exclude the parents/guardians of a minor without a court order upon a showing of good cause
160
Objections during depositions
Any Objection During A Deposition Must Be **Stated Concisely** And In A **Nonargumentative And Nonsuggestive Manner**.
161
Rule 1.340 Interrogatories
* Interrogatories may only be propounded to parties.
* No more than 30 interrogatories without leave of court
* Responding Party Must Object or Answer Each Interrogatory Fully and under Oath within 30 Days after Service
162
How many days does the responding party have to object or answer to interrogatories served with the initial summons and complaint?
If the Interrogatories Were Served with the Initial Summons and Complaint, the Responding Party Has **45 Days** to Object or Answer under Oath.
163
True or False:
Answers to interrogatories are not admissible as substantive evidence.
False. Answers to interrogatories CAN be admissible as substantive evidence.
164
Rule 1.350 Production Of Documents And Things And Entry Upon Land For Inspection And Other Purposes
Each item and category of items to be inspected “shall” be described “with reasonable particularity.”
The responding party is not obligated to actually produce documents or permit inspection within **30 days after service of the request**
The time limitation is for a RESPONSE to the request, not for the production or inspection itself. Responding party merely obligated to serve “response” within 30 days.
165
What is the scope of a request under Rule 1.350 Production Of Documents And Things And Entry Upon Land For Inspection And Other Purposes?
Reasonably calculated to lead to the discovery of admissible evidence.
166
Response under Rule 1.350 Production Of Documents And Things And Entry Upon Land For Inspection And Other Purposes.
Responding party must produce documents in the responding party's "possesssion, custody, or control."
possession, custody or control = exists where responding party has the right, authority, or the ability to obtain the requested documents.
Responding party has not obligation to create documents that do not exist.
167
Objections under Rule 1.350 Production Of Documents And Things And Entry Upon Land For Inspection And Other Purposes
Objections made to document requests should be specific, not generalized.
Boilerplate objections such as “the request is overly broad, unduly burdensome, and outside the scope of permissible discovery” are insufficient without a full, fair explanation particular to the facts of the case.
168
True or False
Objections to portions of a document request excuses the responding party from producing those documents to which there's no objection.
False. Objections to portions of a document request **do not excuse** the responding party from producing those documents to which there is no objection.
169
Rule 1.351 Production Of Documents And Things Without Deposition
Notice of Intent to Issue Subpoenas for Production from Non-Parties Must Be Served a MINIMUM of **10 Days** Prior to the Issuance of Subpoenas.
Proposed Subpoenas Shall Be Attached to the Notice
The Party Seeking the Documents from the Non-Parties Is PROHIBITED from Sending the Notice or Proposed Subpoenas to the Non-Parties.
170
Objections by Parties to production of documents
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 Object, the Only Recourse Is to Take a Records Custodian Deposition
171
Rule 1.360 Examination of Persons
Team Plaintiff IS generally permitted to attend. Team Defense is NEVER permitted to attend.
The party being examined has the right to document the CME by stenographic recording, audio or video.
Video or audio tape of the CME should be considered work product as long as the recording is not being used for impeachment or use at trial.
172
Rule 1.370 Requests for Admission
Requests for Admission carry the same 30-day response time as other discovery methods, extended to 45 days where the requests are served with the initial pleading.
173
Three alternative responses to a request for admission:
1. an objection to the request
2. a written response to the request; or
3. no response at all
174
Four alternative written responses by a party electing to respond rather than object:
1. an admission
2. a denial
3. a qualified admission or denial, or
4. a statement that the responding party is unable to admit or deny.
175
True or False
A party seeking to withdraw an admission for failure to respond, or to amend a prior respond, must seek such relief by motion.
True.
176
True or False:
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.
True
177
Rule 1.380 Failure to Make Discovery - Sanctions
A motion for order compelling discovery is used when a party has failed to:
answer a question at deposition
answer an interrogatory
to produce in response to an Request to Produce
to appear for a Rule 1.360 Examination
178
What must the losing party be required to pay on an order compelling discovery?
the losing party shall be required to pay reasonable expenses incurred, including attorney's fees, in obtaining an order compelling discovery or sucessfully opposing the motion.
179
Rule 1.380(b) Sanctions for Failure to Comply with Order Compelling Discovery
If a trial court dismisses an action or enters a default for discovery violations, it must find that the violations were willful.
Striking a party’s pleadings is only justified in cases of deliberate disregard for the court’s authority.
180
1.420 (a) Voluntary Dismissal
Rule 1.420 permits a plaintiff to dismiss all or part of an action.
Before trial-dismissal must be in writing
During trial-a notice of voluntary dismissal is effective if recited orally and on the record
A party can have one free voluntary dismissal
181
True or False:
All voluntary dismissals are with prejudice.
False. The first voluntary dismissal is without prejudice.
The second voluntary dismissal is with prejudice.
181
When are you entitled to take a voluntary dismissal?
Either:
1. before a hearing on a MSJ
2. before a case is submitted to the jury, or
3. before a non-jury case is submitted to the court.
182
Actions dismissed without prejudice cannot be subsequently refiled.
False. Actions dismissed without prejudice can be subsequently refiled, unless the statute of limitations has expired in the interim
183
In the event of a voluntary dismissal, what is the defendant entitled to?
Defendant is entitled to an award of costs.
Defendant MUST seek the award of costs in the dismissed action.
184
What does an order awarding costs to the defendant entitle the defendant to?
Entitles the defendant to a stay of any subsequent action until the cost judgment has been paid.
stay = an action taken by a court to stop a legal proceeding or the actions of a party.
185
1.420(b) Involuntary Dismissals
1.420(b) provides a “directed verdict”-like motion in a non-jury case.
The motion for dismissal MUST be denied if the claimant has submitted a prima facie case.
Prima Facie Case = the claimant has presented enough evidence to establish a valid claim, creating a presumption in their favor.
186
True or False:
A dismissal under 1.420(b) Involuntary Dismissal may be entered against a party before it has completed its presentation of evidence.
False. A dismissal under 1.420(b) CANNOT be entered against a party before it has completed its presentation of evidence.
186
Involuntary Dismissal for failure to obey a court order
Dismissal for failure to obey order of the court must contain specific findings of fact
187
Factors to be considered for failure to obey order of the court:
(1) whether the attorney's disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience;
(2) whether the attorney has 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.
188
1.420(e) Dismissal for Failure to Prosecute
Dismissal can occur only after a party or the court moves for dismissal upon notice and hearing.
189
How many days after notice does the plaintiff has to take action of record?
Re: Dismissal for Failure to Prosecute
The 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
190
Dismissal for Fraud on the Court
Trial court has the inherent authority to dismiss an action when it finds that a plaintiff has perpetrated a fraud on the court.
Fraud must be shown by CLEAR AND CONVINCING evidence.
A party must demonstrate that it **knowingly engaged in an unconscionable scheme** that disrupts the judicial system's ability to fairly adjudicate a matter by influencing the trier of fact or obstructing the opposing party's case.
The fraud must permeate the entire proceeding.
191
Rule 1.500 DEFAULTS AND FINAL JUDGMENTS THEREON
* forbids the clerk to enter a default against a party who has appeared by the service or filing of any paper.
* requires notice and entry by the court of a default against a party who has appeared by the service or filing of any paper
192
True or False:
The court cannot set aside a default or a final judgment that has been entered upon default.
False. A court may set aside a default or a final judgment that has been entered upon default.
193
In order to set aside a default, the defendant must show:
1. due diligence
2. excusable neglect
3. a meritorious defense
193
when setting aside a default, what must due diligence and excusable neglect be?
Both due diligence and excusable neglect must be **verified or supported by affidavit or competent evidence** at a hearing.
194
What is the appropriate way to disclose the existence of a meritorious defense?
To disclose a meritorious defense, submit a defensive pleading or a verified motion/affidavit that either
(a) states facts that would support a meritorious defense or
(b) outlines legal grounds for the defense.
195
Jury Trials
* right to a trial by jury is preserved by the Florida Constitution
* this is a right that CAN be WAIVED
* You must REQUEST (DEMAND) a trial by jury
196
How to demand trial by jury?
A plaintiff can request a trial by jury in the complaint
A defendant may request a trial by jury in the answer
197
True or False:
Failure to request a trial by jury in the complaint or answer is fatal.
False. A party may request a trial by jury no later than 10 days after service of the last pleading directed to the issue.
197
What is the best practice when requesting a trial by jury?
Don't wait to the last minute to demand a trial by jury. Put the demand for jury trial in your complaint or answer.
198
What happens if a trial by jury is waived?
If a trial by jury is waived, a jury trial may NOT be granted without consent of all parties.
A demand for trial by jury may NOT be withdrawn without the consent of the parties
199
RULE 1.440 SETTING ACTION FOR TRIAL
It is no longer required that a case be "at issue" before being set for trial.
200
Setting trial period: streamlined and general cases
For streamlined and general cases:
the court must set the trial period at least 45 days before the projected trial date in the case management order.
For cases not under rules 1.200 or 1.201(complex litigation), or if a party requests an earlier trial date, any party can file and serve a motion for trial.
201
What must a motion include when requesting an earlier trial date?
The motion must include:
-an estimate of the time required
-whether there is a basis for expedited trial
-whether the requested trial is a jury or non-jury trial
-whether the tiral is on the original action or a subsequent proceeding, and, if applicable
-the court has authorized the participation of prospective jurors or empaneled jurors through audio-video communication technology
201
True or False:
Any order scheduling a trial term must schedule the the trial to begin NO SOONER THAN 15 DAYS AFTER SERVICE OF THE ORDER
False. Any order scheduling a trial term must schedule the trial to begin NO SOONER THAN 30 DAYS AFTER SERVICE OF THE ORDER.
202
Qualifications of Jurors
Jurors must be:
* at least 18 years of age
* citizens of the U.S.A. and legal residents of FL and their respective counties
* must possess a driver's license or identification card issued by the Dept. of Highway Safety and Motor Vehicles, or
* have executed an affidavid requesting to be a juror.
203
Not elegible to be a juror if:
* under prosecution or convicted of a felony or certain crimes.
* 70 years of age and up (unless they request to serve on juries)
204
How many members must a civil trial jury have?
6 members
205
What is Voir Dire?
Process of determining whether a juror can serve fairly and impartially in a given case by asking the juror various questions.
206
True or False:
Voir Dire is a right.
True.
207
Test for determining juror competency
whether the juror can
1. lay aside any bias or prejudice and
2. render a verdict solely upon the evidence presented and instructions on the law given by the court
208
What to do to preserve cause objections for appellate review?
1. Make your challenge a cause
2. The trial court refuses to strike a 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 on last clear opportunity to take the appropriate corrective action.
7. Demonstrate to the appellate court that the objectionable juror actually was seated on the jury and not merely as an alternate.
209
Peremptory Challenges
* Each party gets 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
210
Test for examining discriminatory use of preemptory challenges
1. A party objecting to a peremptory challenge on racial grounds must:
a) timely and properly object (must be specific)
b) show the venire person belongs to a distinct racial group, and
c) request the court to ask the striking party for their reason.
*Objection must be made again before jury is impaneled. If not, it will be waived. *
2. 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 the explanation is not pretext, the strike will be sustained.
211
Alternate Jurors
* The Florida Rules of Civil Procedure provide for the selection of one to two alternate jurors
* Alternates are subject to the same selection process as the main panel of jurors
* Alternates serve only in the event of the incapacity or disqualification of one of the main jurors
212
How many peremptory challenges do each of the parties have for alternate jurors?
one peremptory challenge per alternate juror or jurors
213
Can leftover peremptory challenges from selection of the main jury be used to challenge alternate jurors?
No.
214
True or False
Alternate jurors should be dismissed before the jury retires for their deliberations.
True
215
Backstrikes
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.
216
What is a proffer?
A proffer is a presentation of excluded evidence.
217
Three purposes of a proffer:
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.”
218
Safest way to proffer
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
218
Plan B to Proffer: Oral or Written Summary
Counsel may accomplish this by stating with specificity what he or she anticipates will be the witness’ testimony.
1. the attorney must be clear she is making a proffer.
2. the attorney must consider the existing evidence before the court to decide if additional context is needed in the proffer.
3. the attorney must make clear the purpose and relevance of the proffered evidence
Do not use Plan B unless the judge blocks your proffer of the actual witness testimony first
219
RULE 1.460 Motions to Continue Trial
Motions to continue trial are DISFAVORED and should RARELY be granted and then ONLY upon good cause shown.
A motion to continue trial must be in writing unless made at a trial and, except for good cause shown, MUST be signed by the named party requesting the continuance.
A motion to continue trial MUST be filed **PROMPTLY **after the appearance of good cause to support such motion. Failure to promptly request continuance may result in motion being denied.
220
All motions for continuance, even if agreed, must state with specificity:
1. Basis for continuance and when it was disclosed to the movant.
2. Whether the motion is opposed.
3. Actions and dates required for trial readiness, including availability of third-party witnesses or experts.
4. Proposed trial readiness date and whether it is agreed upon by all parties.
If the required conference did not occur, the motion must explain the dates and methods of the efforts to confer. Failure to confer may result in sanctions.
221
Rule 1.470 Exceptions Unnecessary; Jury Instructions
Parties must file written requests for jury instructions with the court.
222
Five requirements relating to jury instructions:
1. Use Florida Standard Jury Instructions unless deemed inadequate by the judge;
2. Require written requests for jury instructions from all parties;
3. Hold a charge conference before the court to settle the charges to be given
4. Make and rule on all objections at the charge conference;
5. Inform counsel of intended charges at the charge conference.
223
How to object a jury instruction?
1. identify the jury instruction by number
2. state that you object to it
3. further state that the jury instruction is NOT an accurate statement of the law
224
Rule 1.480 Motion for a Directed Verdict
Motion for directed verdict MUST:
1. be made at the close of the evidence offered by the non-moving party.
2. be renewed at the close of all evidence
225
True or False:
Motion for directed verdict should be granted unless the evidence is such that it is incapable of supporting a verdict in favor of the non-moving party.
False. Motion for directed verdict should **not** be granted unless the evidence is such that it is incapable of supporting a verdict in favor of the non-moving party.
226
When must a post verdict for judgment in accordance with motion for directed verdict be served?
A post verdict motion for judgment in accordance with motion for directed verdict MUST be served within 15 days after the return of a verdict or discharge of the jury
227
Rule 1.442 Proposals for Settlement
Plaintiff cannot serve a proposal for settlement to a defendant any earlier than 90 days **after service of the summons and initial pleading on that defendant**.
Defendant cannot serve a proposal for settlement to a plaintiff any earlier than 90 days **after the action has been commenced**
228
Latest to serve proposal for settlement
No party can serve a proposal for settlement any later than the earlier of 45 days before the date set for trial or 45 days before the first day of the docket on which the case is set for trial
229
How many days does the offeree has to accept or reject a proposal for settlement?
30 days from the date of service
230
True or False:
Acceptance of an offer can be orally.
False. Acceptance of an offer MUST be in writing.
BEST PRACTICE – File a “Written Acceptance of Proposal for Settlement”...the same for withdrawals.
231
What happens when a single plaintiff files a proposal for settlement to multiple defendants?
When a single plaintiff files a proposal for settlement to multiple defendants in a case involving separate issues of liability, the proposal must set forth the specific amount directed to each defendant to settle the case.
232
When is the only time when a joint proposal from a single plaintiff to multiple defendants is valid?
When there is vicarious liability on the part of one defendant for the conduct of the other
233
True or False
Proposals for settlement must be filed.
False. The proposal is to be served and not filed.
234
True or False:
If a plaintiff has served an offer of judgment and obtains a JUDGMENT that exceeds the offer by 25%, the plaintiff is entitled to an award of attorney's fees from the date of the offer forward.
True
235
What happens if the defendant who has served an offer of judgment obtains a judgment that is 25% less than the offer?
the defendant is entitled to an award of attorney's fees from the date of the offer forward
236
When must a motion for attorney's fees or costs for proposal for settlement be filed and served?
A motion for attorney's fees or costs made under Rule 1.442 must be filed and served within 30 days after entry of the judgment.
237
Rule 1.510 Summary Judgment
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.
But, if a defendant files an MSJ before 20 days have elapsed, the plaintiff can immediately file an MSJ.
238
True or False:
A plaintiff cannot file an MSJ before the defendant files an answer
False. A plaintiff **can **file an MSJ before the defendant files an answer
239
Does discovery has to be completed for a party to file a MSJ?
No. There is no requirement in Rule 1.510 that a party seeking affirmative relief wait for the completion of all possible discovery.
240
Does the moving party has the obligation to serve affidavits in support of the MSJ?
No. Admissions in pleadings, sworn deposition testimony, sworn interrogatory answers and admissions binding upon a party under Rule 1.370 can all provide grounds to support a motion for summary judgment without any affidavit being filed.
241
When must the hearing date for a MSJ be set?
The hearing date must be set no sooner than 10 days after the deadline for serving a response.
242
Does a MSJ and any supporting evidence has to be served contemporaneously? When it must be served?
The motion and any supporting evidence or affidavits must be served CONTEMPORANEOUSLY at least 40 days prior to the hearing
243
Opposition to the MSJ
all OPPOSING FACTS AND EVIDENCE (including affidavits) must be served NO LATER than 40 days after service of the motion for summary judgment
244
Hearing for MSJ
The 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.
244
When is a summary judgment required?
Summary judgment is required if the evidence is such that a reasonable jury could NOT return a verdict for the nonmoving party.
This is essentially a directed verdict standard.
245
True or False:
An order granting an MSJ is an appealable final order.
False; is not. But a final summary judgment is appealable.
246
Is a partial summary judgment final?
Yes. Where a partial summary judgment completely disposes of claims with respect to a party, the judgment is final and subject to immediate review.
246
Denial of certain MSJs is subject to interlocutory review:
1. Order determining that, as a matter of law, a party is not entitled to workers’ compensation immunity.
2. Order determining that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law.
3. Order determining that, as a matter of law, a party is not entitled to immunity under section 768.28(9), Florida Statutes.
4. Order determining that, that, as a matter of law, a party is not entitled to sovereign immunity.
247
Rule 1.530 Motions for New Trial and Rehearing; Amendments of Judgments
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
248
True or False
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
True
249
How much time does opposing party has to serve opposing affidavits?
The opposing party has 10 DAYS after such service within which to serve opposing affidavits
250
1.530(g) Motion to Alter or Amend a Judgment
A motion to alter or amend the judgment shall be served not later than 15 days after the date of filing of the judgment.
251
1.540(a) – Clerical Mistakes
1.540(a) applies only to remedy clerical mistakes and errors from oversight or omission
252
True or False
A motion under 1.540(a) may be made at ANY time
True
252
Examples of clerical errors
* mistakes in mathematical computations,
* misdescription of parties, and
* erroneous property descriptions.
253
1.540(b) Mistake, Inadvertence, Surprise or Excusable Neglect
Honest and inadvertent error made in the ordinary course of litigation, usually by the court itself.
Examples:
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) failure of a court to send the defendant a copy of the final judgment, thus precluding a timely appeal of the judgment.
254
1.540(b)(2) Newly Discovered Evidence.
Test for determining whether to grant relief on the basis of newly discovered evidence:
Whether:
(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
255
True or False:
Motion based on newly discovered evidence MUST be made no later than 90 days after entry of judgment.
False. Motion based on newly discovered evidence MUST be made no later than ONE YEAR after entry of judgment.
256
1.540(b)(3) Fraud, Misrepresentation and Misconduct
Motion for relief 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.
Motion must set forth the essential facts that constitute fraud and not mere legal conclusions.
257
1.540(b)(4) Void Judgments
If a court determines that the judgment is void, it has no discretion and must vacate the judgment.
one year time limitation does not apply to void judgments.
258
Mediation
A case can be referred to 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.
259
When must the first mediation conference be held?
Unless otherwise ordered by the court, the first mediation conference or arbitration hearing shall be held **within 60 days** of the order of referral.
260
1.700(d) Disqualification of a Mediator or Arbitrator
Any party may move to enter an order disqualifying a mediator or an arbitrator for good cause
261
Mediation Attendance:
A party is deemed to appear at a mediation conference if the following persons are PHYSICALLY present:
(1) The party or a party representative having full authority to settle without further consultation;
(2) The party’s counsel of record, if any; and
(3) A representative of the insurance carrier who can settle up to the plaintiff's last demand or policy limits, without further consultation.
262
1.720(e) Certification of Authority
Each party must file and serve a written notice 10 days before the mediation conference, identifying their representatives or as an insurance carrier representative, and confirming their authority to attend.
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1.720(f) Sanctions for Failure to Appear Mediation Conference
If a party fails to appear at a duly noticed mediation conference without good cause, the court, upon motion, shall impose sanctions, including award of mediation fees, attorneys’ fees, and costs, against the party failing to appear.
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1.710(a) Completion of Mediation
Mediation shall be completed within 45 days of the first mediation conference unless extended by order of the court or by stipulation of the parties
265
Potential outcomes of a mediation:
1. Settlement
2. Impasse (cannot agree on a resolution)
3. Adjourn (postponing or suspending the mediation session to a later date)
266
True or False:
A mediation settlement agreement is an enforceable contract
True
267
Rule 1.600 Deposits in Court
An order authorizing payment into the registry of the court is a non-final order that is nonappealable as a matter of right.
268
Rule 1.610 Injunctions
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 injunctive 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
269
True or False
Purely economic injury is reasonable to an award of injunctive relief
False. Purely economic injury is FATAL to an award of injunctive relief.
270
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Stopped at 413 of 429 slides
