When deciding on compensation, U.S. courts consider the lost wages of the dead or injured victim, the loss of economic support and services to family members, and the loss of companionship and guidance provided by a spouse or parent killed in the crash. But because international aviation accidents fall under Warsaw Convention caps, victims are forced to file legal claims in order to receive compensation that fairly reflects the incident's enormity.

When representing a client who may have a claim for punitive damages, remember to accumulate sufficient record evidence so as to substantiate your motion to amend to include a claim for punitive damages. Do not include the claim for punitive damages in your initial complaint. This will only result in having your request for punitive damages stricken. This will also show your opponent and the judge that you are not well versed in the area of punitive damages. Instead, file your complaint without a claim for punitive damages, seek early discovery to find support for your punitive damages claim, and then move to amend your complaint to include a claim for punitive damages. Support your motion with sufficient facts, documents, and affidavits to show the defendant's conduct was punitive in nature. Obtain an order allowing you to amend your complaint for punitive damages. Amend your complaint for punitive damages, and then proceed in preparing your case for trial. If these procedural steps are not taken, then you will not be allowed to pursue your punitive damage claim regardless of how egregious the defendant's conduct may have been in the case.

A trial lawyer representing a client in a wrongful death case involving a dangerous, hazardous or toxic substance encountered by the decedent during his employment, has the right to have the County Medical Examiner perform an autopsy of the deceased. See Fla. Stat. 406.11. This may be very helpful, because in cases involving death due to exposure to dangerous, hazardous or toxic substances, the issue of causation is often difficult to prove. That is, it is hard to ascertain that the cause of death was substantially contributed to by exposure to the hazardous or toxic agent/chemical at issue.

The question of causation may be conclusively decided by the pathologist after an autopsy is performed and the decedent's tissue sampled. By studying the tissue and performing residual studies, the pathologist may be able to determine whether the toxic agent/chemical or other exposure involved was related to the cause of death, and whether such exposure substantially contributed to the cause of death. This type of testimony will later be critical in proving or disproving the case. See Florida Standard Jury Instruction 5.1(a)(b)(c).

The pathologist's findings may convincingly establish the case. Therefore, an autopsy is something that should be requested by both sides in the lawsuit. A plaintiff's lawyer should seek the opinion of a medical examiner or a pathologist because it will assist in proving how the toxic or hazardous chemical worked within the body to kill the deceased person. On the other hand, a defendant in the action should also request this type of opinion since it may provide a complete defense should there not be any findings consistent with the plaintiff's theory of recovery.

In cases not involving exposure to toxic or hazardous substances in an employment setting, Florida law states that the court has discretion in deciding whether to enter an order directing performance of an autopsy. In the early case of Ullendorff v. Brown, 24 So.2d 37 (Fla. 1945), the Florida Supreme Court supported the Trial Court's decision to have an autopsy of a deceased in a wrongful death case for the purpose of proving justice and preventing fraud. In that case, the body of the decedent was exhumed and an autopsy was performed. Ullendorff 24 So.2d at 40.

More recently, Florida Courts of Appeal have held that trial courts are authorized by law to order not only autopsies, but exhumations, when necessary, to determine the cause of death of the decedent, if the autopsy will provide probative evidence regarding the cause of death. See Esgro v. Trezza, 492 So.2d 422 (Fla. 4th DCA 1986). The Third District Court of Appeal in Landrum v. Armstrong World Industries, 535 So.2d 656 (Fla. 3d DCA 1988), approved the trial court's order requiring an autopsy of a living plaintiff and exhumation, if necessary, if the plaintiff died before the lawsuit was completed. The Third District held that the requirement for an autopsy was well supported in Florida law and was relevant in that asbestos related products liability suit. Id.

As stated by Whitmore on Evidence §2221 at page 197-198, "the exhumation or autopsy of a corpse, when useful to ascertain facts in litigation, should of course be performed. Reverence for the memory of those who have departed does not require us to abdicate the high duty of doing justice to the living ...."

When involved in a case regarding allegations of wrongful death due to toxic or hazardous exposures or diseases caused by insidious or latent materials, chemicals, etc., both plaintiff and defendant should seriously consider requesting that an autopsy be performed, or if necessary, exhumation and an autopsy, to establish the cause of death within a reasonable degree of medical probability.

An insurer has a duty to exercise good faith in evaluating and examining the validity of claims against its insured. Florida Courts have long recognized a claim for violation of that duty to exercise good faith. The actions have traditionally been called "Bad Faith Lawsuits" filed against insurance companies.

Prior to the enactment of Fla.Stat. §624.155, Florida law did not recognize any cause of action for a first party bad faith claim. Florida Statute §624.155 changed the law allowing first party bad faith claims. Fla.Stat. §624.155 states as follows:

(1) Any person may bring a civil action against an insurer when such person is damaged:

(a) By a violation of any of the following provisions by the insurer:
1. Section 626.954(1)(i), (o), or (x);
2. Section 626.9551;
3. Section 626.9705;
4. Section 626.9706;
5. Section 626.9707; or
6. Section 627.7282.

(b) By the commission of any of the following acts by the insurer: 1. Not attempting in good faith to settle claims when, under all circumstances, it could and should have done so, had it acted fairly and honestly towards its insured and with due regard for his interests; 2. Making claims payments to insureds or beneficiaries not accompanied by a statement setting forth the coverage under which payments are being made; or 3. Except as to liability coverages, failing to promptly settle claims, when the obligation to settle a claim has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance coverage.

Notwithstanding the provisions of the above to the contrary, a person pursuing a remedy under this section need not prove that such act was committed or performed with such frequency as to indicate a general business practice. . . .

Any "Person" Means "Insured"

Although Florida Statute §624.155(1) states that "any person" may bring a civil action when there is a violation, the case law limits the actions to the insured. See Cardenas v. Miami Dade Yellow Cab Co., 538 So.2d 491 (Fla. 3d DCA 1989).

Punitive Damages

Upon a showing that the bad faith acts occur with such frequency as to indicate a general business practice, and are able to show that the acts are willful, wanton, malicious, and/or in reckless disregard of the rights of the insured, Florida Statute §624.155(4) allows a first party bad faith claim for punitive damages. Interestingly, any person pursing a claim for punitive damages under Fla.Stat. §624.155 must post the costs of discovery in advance of the action.

Statutory Notice

The Statute requires that a notice filled-out in a special form be provided to the Florida Department of Insurance and the insurer. If the notice is not appropriately completed, the bad faith action does not accrue. The bad faith lawsuit cannot be filed until 60 days after written notice is given to the Department of Insurance and the insurer. During the 60 days, the insurer may cure the bad faith by making payment on the claim.

Damages

In McLeod v. Continental Insurance Co., 591 So.2d 621 (Fla. 1992), the Florida Supreme Court held that damages recoverable in a first party bad faith suit are limited to the extent of the available coverage, but also allow the claimant to recover interest, court costs, and attorneys' fees in both the underlying action and the bad faith action. In a footnote, the Supreme Court limited the award of mental anguish damages to instances in which the defendant acted with malice as defined under Fla. Stat. §624.155(4).

Recent Legislative Amendment

The 1992 Florida Legislature recently amended Fla. Stat. §627.727(10), allowing the claimant in a first party bad faith action under Fla. Stat. §624.155 to recover complete damages including the excess verdict amount awarded in the underlying claim. This amendment changes the law as defined by the Florida Supreme Court in the McLeod decision discussed above. The act will allow the following damages to be recovered upon successfully handling a first-party bad faith action:

"The damages recoverable from an uninsured motorist carrier in an action brought under Fla.Stat. §624.155 shall include the total amount of the claimant's damages, including the amount in excess of the policy limits, any interest on unpaid benefits, reasonable attorney's fees and costs, and any damages caused by a violation of a law of the state. The total amount of the claimant's damages are recoverable whether caused by an insurer or by a third-party tortfeasor.

Since the Amendment was defined as remedial, it will act retroactively. The statute states in part:

The purpose of subsection [10] of §627.727, Florida Statutes, relating to damages, is to reaffirm existing legislative intent, and as such is remedial rather than substantive. This section and §627.727(10), Florida Statutes, shall take effect upon this act becoming a law and, as it serves only to reaffirm the original legislative intent, §627.727(10), Florida Statutes, shall apply to all causes of action occurring after the effective date of §624.155 Florida Statutes.

Prior to this change in the law, bad faith actions under Fla.Stat. §624.155 limited damages to the amount of insurance coverage available plus attorneys' fees and costs in the underlying action and in the statutory bad faith action. Trial attorneys should take note of these changes and follow through on perfecting or defending first-party bad faith actions arising out of insurance claims.

Top officials of a major manufacturer of breast implants have recently confessed to knowing of the medical dangers related to breast implants for many years, yet, no warnings were ever provided. Breast implants have caused thousands of women to suffer serious physical injuries. As a result, hundreds of lawsuits have been filed throughout the country on behalf of the victims of breast implants. The purpose of this article is to discuss the background, available legal remedies, and general preparation necessary in a breast implant case.

Background

Manufacturers of silicone breast implants began selling and marketing them in the 1960's. At that time, the F.D.A. did not exist and the federal government did not regulate breast implant manufacturers in any way. After the Food, Drug and Cosmetics Act was passed in 1976, the F.D.A. did not regulate breast implant manufacturers because the law did not affect them since they were already on the market. Thus, the manufacturers did not have to provide any safety information to the government. As a consequence, breast implants were sold unchecked for many years.

Medical Ramifications

Substantial data exists indicating that silicone breast implants are responsible for causing many serious medical complications including, but not limited to breast cancer; liver cancer, as a result of a chemical reaction in the body caused by materials used in the implant sack; immune deficiencies; lumps throughout the body as a result of silicone leakage transferred through the lymphatic system to different parts of the body including, the neck, arms, legs, armpits; scleroderma, the toughening of the outer portion of the skin and sensitivity of the hands, fingers, toes and feet; lupus, accompanied by rashes, swollen glands, hair loss, kidney and lung damage; central nervous system disorders; and chronic arthritis. Further, an overwhelming majority of women that have breast implants suffer from capsular contracture which is the formation of hard fibers causing a type of scar tissue in the breast. As a result, the breasts become sensitive, painful, uneven in size and lumpy.

Additionally, a risk exists that the silicone implant sacks may rupture. This would require surgical intervention to remove the sacks and replace them. Finally, detection of cancer causing lumps becomes difficult when a women has breast implants. The difficulty in diagnosing cancer increases the risk of breast cancer among implant patients.

State of the Art

Review of the medical literature and scientific data indicates that it has been suspected, if not known, since the late 1960's and early 1970's that the medical problems discussed above resulted from the use of silicone breast implants. Animal studies conducted in the late 1960's showed that silicone caused cancer. Nevertheless, the manufacturers of breast implants did not warn the public of these risks. Some warnings were published starting in the late 1970's and into the 1980's, but the warnings were solely provided for the medical field and usually written in a way that the average person would not understand. Moreover, the risks were never fully disclosed.

Legal Theories

A trial lawyer interested in representing plaintiffs in breast implant cases will be able to file suit on traditional product liability theories such as negligence, strict liability and breach of warranty. The two (2) most popular theories of recovery to pursue are negligence and strict liability.

The negligence claim should include failure to warn. Based on the available data, the potential defendants failed to provide the plaintiffs with sufficient warnings when medical and scientific information existed showing that silicone breast implants were hazardous. Nevertheless, breast implant companies continued to manufacture, market and sell the breast implants with impunity.

Under both strict liability and negligence, the manufacturers, suppliers and sellers of a product have a duty to warn users of hazards and complications that may be encountered when using the company's products. This duty required breast implant companies to adequately warn of the potential medical hazards associated with the product when the breast implant companies knew, or should have known, about the dangers. See Tampa Drug Co. v. Wait, 103 So.2d 603, 607 (Fla. 1958).

Under strict liability law, you must identify the type of silicone breast implant used and allege that the defendant was in the business of producing, distributing and/or selling the product; that the product reached the consumer without substantial change in the condition when it left the defendant's possession; that the product caused injury to the plaintiff, or was a substantial contributing cause of injury to the plaintiff; and that the product was defective or unreasonably dangerous. See West v. Caterpillar Tractor Corp., 336 So.2d 80 (Fla. 1976).

The manufacturer of the breast implants had a duty to give a warning commensurate with the danger or possible consequence encountered when using the product. Wait, 103 So.2d at 609. The duty to warn is continuing in nature. Hobbley v. Sears Roebuck Co., 450 So.2d 332 (Fla. 1st DCA 1984). Under the failure to warn theory, claims for strict liability and negligence are valid even though the product may have been designed and manufactured properly, if the product is unreasonably dangerous due to a lack of warning or lack of an adequate warning to the ultimate user. Hobbley v. Sears Roebuck Co., 450 So.2d 332 (Fla. 1st DCA 1984); See also Borell v. Fiberboard Paper Products Corporation, 493 F.2d 1076 (5th Cir. 1973).

Expert Witnesses

The hiring of the appropriate types of expert witnesses in a breast implant case is very important. A trial lawyer handling a breast implant case will have to hire several different types of experts. Among them, a trial lawyer should consider retaining the following:

Plastic Surgeon - to discuss how the implant works, where it is placed, and what surgical procedure is involved;

Medical Internist - to discuss the medical ramifications and resulting damage caused by the breast implant;

Oncologist - a cancer specialist that can identify the type of cancer that the plaintiff suffers from;

Immunologist - to discuss immune deficiencies that may have been caused by the breast implant in question;

Treating physician - whenever possible, the treating physician should be used to establish causation and damages. The plaintiff's medical doctor should carefully explain to the jury how the breast implant hurt the plaintiff, the seriousness of the plaintiff's disease, and the plaintiff's prognosis;

State of the Art Expert - One of the medical doctors should be qualified as a science/medical historian. The medical historian should be used in the breast implant case to establish the failure to warn case. This is accomplished by testifying about what medical and scientific information was available to the defendant at a given time and place, thereby proving the existence of the defendant's duty to warn about the dangers associated with the breast implants. State of the art testimony is often dispositive of the failure to warn liability issue. In other words, once the medical and scientific literature mentions that there may be a hazard related to the defendant's product, then the manufacturer had an affirmative duty to warn of the dangers. See Johns Manville Sales Corp. v. Janssens, 463 So.2d 242 (Fla. 1st DCA 1984); and

Economist - If lost wages are involved, an economist should be called by the plaintiff's attorney to discuss economic losses in the past and in the future.

Exhibits

Along with the standard documents used in a personal injury case, which include medical bills, medical records, mortality tables, models and photographs. Consumer complaints, previous lawsuits, federal regulatory agency reports and similar documents indicating a problem with breast implants should also be introduced into evidence to establish that the defendant knew, or should have known, that there was a problem with the breast implants at the time that it was implanted in the plaintiff.

Demonstrative evidence should include a sample of the type of breast implant at issue, a model of human breasts, photographs of any surgery necessary to place the implant or remove the implant, and other traditional exhibits used in a general personal injury cases.

Preparation

Many breast implant cases have been filed throughout the country. It seems that just about every personal injury firm represents at least one breast implant victim. It is important to properly prepare a breast implant case for trial. Breast implant cases are complex and require thorough planning, research, funding and dedication. A trial lawyer representing a breast implant victim should be prepared to "go the distance" so as to maximize the client's potential to attain just compensation. Only lawyers that are willing to put in the time, money and effort to correctly work up these cases should handle them.

The closing argument is one of the most important parts of a trial. The entire trial leads up to the summation. The argument is especially significant if the outcome of the trial is too close to predict. At that point, all that matters is the attorney's last minute attempt to persuade the jury to find in favor of his or her client. This article offers some basic advice and a general outline that should be considered when preparing for, and presenting, the closing argument.

During the summation, all of the evidentiary pieces should be brought together and the case should be presented in a strong, fluid and persuasive manner. All points that help prove the elements establishing the theory of the case must be fully explained. The closing should be performed in a simple, yet precise way.

The podium should not be used. Instead, walk around freely. The use of a podium blocks communication and sends a message to the jury that there is something between you and them. Closing argument should be presented without notes or with as few notes as possible. If notes must be used, then use flash cards or very well organized papers so that you are not fumbling through documents when closing the case. Stand no closer than six feet from the jury. If you get too close, you will be encroaching on the jury's comfort zone and may cause them discomfort.

Begin the closing argument with a basic greeting. Almost all trial attorneys will thank the jury for their patience and attention before formally beginning the summation. This should not be done in a patronizing way, but sincerely and honestly. You should also explain what the summation is all about. A road map should be given to the jury explaining what is going to be done and how it will be accomplished.

Use simple and plain english. Leave legalese at the office. Avoid using excessively flowery language or complex legal terms. If complex scientific, medical or legal terms must be used, make sure that those words and terms are completely explained and defined well before they are used in context during the closing argument.

Next, discuss the difference between a civil and criminal trial. The jury should understand that a civil trial is not conducted like a criminal trial and that at the end of the civil case, no one will go to jail or lose any privileges. The jury should understand that what is being sought are money damages.

After that, discuss the standard of proof. Compare and contrast the standard of proof in civil cases from that of criminal cases. Examples of how the standard of proof works in civil cases should be provided. For instance, the trial attorney should explain that the greater weight of the evidence is like the scale of justice. That is, if the scale tilts to one side just a little bit, that is enough to be considered the greater weight of the evidence. Other examples may be used such as the difference between 51% and 49%, etc. These examples will help the jury understand the standard of proof and how to decide the case.

Follow that discussion with a complete and interesting explanation about the basis of the law suit. A short summary of the theory of the case and the establishing evidentiary facts should be presented to the jury at that point. Deliver this portion of the closing as if telling a story.

After the general picture is fully painted, break down the case by elements in the order that they will be presented to the jury in the instructions. For example, in a negligence case, the attorney should explain what the elements of liability are and how the elements were met or not met in the case. Show how the evidence supports the theory of the case.

The testimony of the witnesses and the documented evidence supporting the claim should be discussed at that point as well. It is important not to rehash all the evidence presented during trial. If the entire case is presented during closing, this will become too boring and the jury will be put to sleep. Instead, point out the highlights of the testimony and the key pieces of the evidence in the trial.

Never misstate the evidence or your position in the case. Jurors do not forget these things, and collectively, they remember everything that happens in the trial. As a group, jurors see and hear it all. Jurors can and will forgive a lawyer if he is kind and honest, but if they think the lawyer is lying to them or misstating the evidence or the law, the jury will never forgive that lawyer and the client may suffer as a result.

Make sure that demonstrative evidence is used when explaining the key points in your case. The jury will need to see and hear the important parts of your argument. The use of demonstrative evidence greatly increases the effectiveness of the closing argument. It will allow the jury to fully understand the case.

It is important to anticipate the arguments that may be made by the other side. Prepare to rebut those arguments before they are made. Nevertheless, avoid attacking the other side's attorney directly. Juries do not appreciate this type of argument and it often backfires. Thus, DO NOT engage in a personality battle with the opposing party or counsel.

After completely discussing the elements of the case and your client's right to prevail in the lawsuit, move on to discuss damages. For the plaintiff, this is an extremely important part of the closing argument and cannot be rushed or discussed in a haphazard or unorganized way. At least 35% of the time allotted for closing argument should be devoted to a thorough discussion of the damages. After the damages presentation, the jury should be fully convinced that your client has sustained significant harm and should be compensated. If properly presented, a significant verdict may result.

Conversely, if representing the defense, the argument should focus more on the liability aspect of the case. The defense should discuss damages in a purely logical and mathematical way. The defense should remind the jurors not to reward the plaintiff, but solely to compensate the plaintiff and only if liability exists.

Some defense lawyers believe that no particular amount should be discussed during closing argument when defending damages. This has proven to be effective for many defense attorneys, but it is also a very dangerous practice. If the jury plans to award the plaintiff a compensatory award, and the defense does not discuss specific amounts, the jury may feel obligated to award the amounts suggested by the plaintiff's attorney. Instead, a defense attorney may want to argue that no damages should be awarded, but that if damages are awarded, the amounts should be based on realistic figures. A sincere and conservative discussion of damages should then follow.

After damages are discussed, you should conclude the closing argument with a strong ending. The heart of the case should be proclaimed, followed by a request that the jury find in favor of your client. Thank the jury for their attention, then sit down at counsel table and appear confident that justice will be served.

Always remember to deliver the summation convincingly, clearly and in an organized manner. Great closing arguments are rarely spontaneous. They require proper preparation, organization, practice, and inspiration. If delivered properly the closing may make all the difference in the result of the trial. Thus, you should devote sufficient time and effort to properly prepare the closing argument.

One of the major new laws affecting trial attorneys to come out of the 1993 Legislative Session was a significant amendment to the collateral source rules. The changes, which apply to all actions accruing after October 1, 1993, greatly standardized collateral source limitations in Florida by eliminating the Automobile Collateral Source Act and providing for the uniform application of the general collateral source rule found at Fla.Stat. § 768.76.

A similar amendment has been made to the Health Maintenance Organization Act. Section 641.31 has been amended to repeal an HMO's absolute right of reimbursement without consideration of fees or costs. Instead, an HMO will be now treated like all other collateral sources under § 768.76. Thus, there is no set off for collateral sources for HMO benefits since there will exist a right of subrogation.

In addition, providers will be required to assert their collateral source claims within 30 days of the date the plaintiff notifies them of a potential right of recovery. Upon notification, the benefit provider must formally advise the plaintiff of the basis of that provider's subrogation rights, and the amount of reimbursement that is sought. If the provider fails to comply with this section, the claim is waived.

When determining the amount that the collateral source claimant may be entitled to receive from a particular settlement amount, the determination will be made using the principles of equitable distribution. This will maximize the recovering parties likelihood of achieving a just result.

Remember that the collateral source statute only applies to past benefits provided. There is no right of subrogation for future collateral sources to be provided.Florida Physician's Ins. Reciprocal v. Stanley, 452 So.2d 514 (Fla. 1984). The new law specifically states that the health care provider or collateral source provider will have no right of subrogation or reimbursement for collateral sources paid after the date of the settlement or judgment.

The new law also specifies that the right of reimbursement shall be limited to the actual amount of collateral sources recovered by the plaintiff from the tortfeasor, minus the plaintiff's pro-rata share of costs and attorney's fees. The plaintiff is required to send the collateral sources a copy of the complaint by certified or registered mail as official notice of the lawsuit. The collateral sources must then assert their notice of payment and right of subrogation reimbursement within 30 days or waive any potential claim.

Section 768.76, commonly known as the Collateral Source Act, requires that the court reduce the amount of damages awarded in negligence cases by the amounts which have been paid to the plaintiff by insurers or other collateral sources. The statute specifically excludes from the set-off any collateral sources that have the right of subrogation or the right of reimbursement. Included in that scenario are Medicare, or any other federal program providing for a federal government lien or right of reimbursement from the plaintiff's recovery. Worker compensation benefits shall not be considered a collateral source of indemnity. The changes to the collateral source law are significant and important. The amended collateral source law attempted to correct many inequities encountered before its passage. The amended collateral source law should be read, understood, and referred to anytime a collateral source issue arises in a case that accrues after October 1, 1993

To be a successful trial attorney you need to know more than the law, courtroom rules and procedures. A successful trial attorney in this day and age must know how to communicate with his or her clients. By communication, I do not mean the ability to use legalease or an extensive legal vocabulary, but the ability to listen to, understand, and talk with the clients.

Much too often an attorney will lose a client or have a grievance filed against him or her by the client not necessarily because the lawyer was doing a poor job, but because the lawyer failed to properly communicate with the client. As a result, the client becomes disgruntled and considers the lawyer to be incompetent. There is a simple solution to this problem: Communicate with your clients on a timely basis. Tell them where they stand. Advise them on the status of their cases. Return their telephone calls on a timely basis.

In order to properly communicate with your clients, you must fully understand what the clients' real problems are and what they want to accomplish in their case. Then discuss a plan of action with your clients that will help them reach their desired goals.

The following suggestions will help you maintain proper client communications in order to improve or maintain good client relationships.

The most important rule is that you must listen to your clients. Hear what they have to say. Find out what they really expect from you and what result they want. When meeting with clients, do not immediately go into "lawyer mode". You should let the clients talk and let them tell you everything they need to say about their case. Do not interrupt the clients. Let them tell the whole story. Clients need to explain their situation so as to feel better about their particular problems. Many times clients will not speak succinctly or logically; however, what they have to say is very important to them and you should listen.

Next, speak with your clients. Tell your clients what you have done, are doing or will do in their cases. Explain to them what you have accomplished on their behalf. This should be done regularly so that the clients will always have a general idea of what stage their cases are in and what you have done to further their interests. In keeping your clients informed of what you are doing, you should send them copies of important pleadings, motions, and correspondence so that they may understand and appreciate the work that has been done. It only takes a minute to accomplish this and it will make a great difference in your attorney-client relationship.

It is very important that you return your clients' telephone calls within a 24-hour period. If you do not return your clients' calls on a timely basis, they will believe that you do not care about them or their cases. If you are in trial, on a business trip, or on vacation, have your partner, associate or secretary return the calls and advise the clients of the reason for the delay. Have them find out if they can assist the clients. Have them help the clients understand that you are in touch with the office and that you will be returning their calls personally once you return.

When a case is coming up for trial, tell the clients where they stand and then put it in writing. Explain the risks of litigating to them so that they are fully informed before going to trial. Demonstrate the strengths and weaknesses of their cases and discuss all ramifications of the trial with the clients. Then, provide the clients with your "game plan" and explain to them how you intend on succeeding in the litigation should they decide they wish to go forward with the case rather than settling.

Maintaining proper client communications is extremely important when attempting to develop or continue a successful trial practice. The results of an American Bar Association poll taken in 1993 showed that most clients consider good communications with their lawyers to be the most important aspect in their attorney-client relationships. Most clients polled considered satisfactory results important, but interestingly, "results" did not rank as high as good attorney-client communications in that survey. Professor David H. Maister of the Harvard Business School states that "clients do not care how much you know until they know how much you care." He also believes that clients of law firms want to know that they are not being lost in the shuffle. They want to feel that their cases are receiving proper attention and that they are important to the lawyers. This can only be accomplished through proper communication with the clients.

In order to be a successful trial attorney, it takes more than just good litigation skills and knowledge of the law. Before a trial attorney may shine in the courtroom, he must have clients to represent. In order to attain and keep clients, the trial attorney must be able to effectively and meaningfully communicate with those clients. Good client communication skills and good trial technique skills will lead to a long lasting and successful legal career.

When a trial practitioner is representing a plaintiff that is a minor child in a personal injury case, the issue as to whether the minor was comparatively negligent usually arises. The purpose of this article is to discuss the status of Florida law regarding the comparative negligence of children.

Pursuant to Florida law, a child under six years of age is presumed to be incapable of committing any comparative negligence. Swindell v. Hellkamp, 242 So.2d 708, 710 (Fla. 1971); Metropolitan Dade County v. Dillon, 305 So.2d 36, 39-40 (Fla. 3d DCA 1974). Thus, if you are representing a case involving a child that is younger than six years old, the negligence of the child is not an issue. If the child is older than six, then the question of comparative negligence goes to the jury for determination.

Nevertheless, if the child is just short of six years of age, there are cases that support treating that child as a six year old for purposes of deciding the comparative negligence question. For example, in Turner v. Seegar, 10 So.3d 310 (Fla. 1942), the Florida Supreme Court held that it was a question of fact for the fact-finder to decide whether a child just a few days short of her sixth birthday was guilty of contributory negligence.

With respect to children that are age six or older, it is important to remember that age is still a factor to be considered to determine the reasonableness of the child's conduct. Evidence showing that the child was not able to appreciate what was happening and used reasonable care as far as children of that age are concerned, will weigh in favor of a finding of no comparative negligence even if under adult standards, the child's acts would be deemed unreasonable.

Among the things that the jury will consider in deciding whether a minor child should be declared comparatively negligent are the following: The degree of care which reasonably careful children of the same age, mental capacity, intelligence, training and experience would use under the same circumstances. See Florida Standard Jury Instruction 4.4.

In McGregor v. Marini, 256 So.2d 542 (Fla. 4th DCA 1972), the Fourth District Court Appeal held that "The standard of care by which the law measures the conduct of a minor over six years of age is that level of care which could reasonably be expected from a child of like age, intelligence, experience and training." Id. at 543. The same standard will be applied to children whether one is discussing the negligence of the child or the comparative negligence of the child. Id.

The jury must consider whether the minor involved had the necessary maturity to appreciate the nature and consequences of his or her acts. Boinca v. Dade County School Board, 549 So.2d 220 (Fla. 3d DCA 1989). If a minor child is determined to be sufficiently mature or one who is able to appreciate the consequences of his or her acts, then the jury will be able to properly find the minor child negligent or comparatively negligent. Turner v. Seegar, 10 So.2d 320 (Fla. 1942).

If the affirmative defense of comparative negligence has been raised in a case involving a child that is less than six years of age, then a motion for partial summary judgment as to that affirmative defense should be raised so as to dispose of the defense prior to reaching trial.

In defending a case involving a child six years of age or older, the defense should do everything possible to establish the maturity of the child so as to prove that the child was able to understand and appreciate his or her acts. This will allow the comparative negligence defense to be decided by the fact finder.

Before the enactment of Florida Statute §768.0415 in 1988, a child could not recover for the loss of parental consortium even if the child's parent had been severely injured through the fault of another. This led to situations where children with parents who suffered catastrophic injuries were unable to attain any compensation for the loss of their injured parents' support, guidance, care and affection.

The unfair situation changed in 1988 when the Florida Legislature enacted Florida Statute §768.0415, which created a separate cause of action for children whose parents suffered significant injuries that resulted in permanent total disabilities. As a result of the enactment of that law, children may now recover for their loss of consortium.

Florida Statute §768.0415, entitled "Liability for Injury to Parent", states as follows:

A person who, through negligence, causes significant permanent injury to the natural or adoptive parent of an unmarried dependent resulting in a permanent total disability shall be liable to the dependent for damages, including damages for permanent loss of services, comfort, companionship, and society.

Even though this law took effect for any negligent act that occurred on or after October 1, 1988, to-date there are still many trial practitioners that are not aware of this act or who routinely omit children's consortium claims when representing severely injured parents. An attorney representing a parent that is severely disabled or permanently injured should remember that the children have a valid cause of action for their loss of parental consortium. A trial attorney must discuss this with his or her client and a joint decision should be made on whether to proceed with the parental consortium claim on behalf of the children. At times, counsel may need to seek the appointment of a guardian ad litem to decide this matter if a conflict of interest arises between the interest of the parents and the children.

Counsel representing defendants in cases involving significantly and permanently injured parents should remember to thoroughly discover the basis for any alleged claim for consortium brought by the children against the defendant. Standard consortium interrogatories frequently sent by defense counsel to plaintiffs regarding spousal consortium claims can easily be amended to fit the scenario for a child's consortium claim.

Children's consortium claims may prove to be significant and should be thoroughly evaluated and developed by trial counsel. Attorneys handling these types of cases should consider hiring appropriate experts to maximize or minimize the impact of these types of claims.

In trial there may be nothing more challenging and dangerous than cross examining an expert witness. The lawyer about to cross examine an expert witness needs to be very careful and very well prepared prior to cross examining the expert. One of the problems that the trial practitioner encounters in attempting to effectively cross examine an expert is that the expert usually controls the testimony by being very knowledgeable in the area he is testifying about. What makes it more difficult is that the lawyer usually is not as well versed in the subject as the expert. Nevertheless, an attorney may successfully cross examine an expert witness by zeroing in on the weaknesses of the expert or of the expert's testimony and exposing them to the jury. This may be accomplished many ways as will be discussed in this article.

The first thing to do when preparing to cross examine an expert witness is to read and summarize the deposition taken of the expert witness or read and summarize prior depositions given by that same expert in other cases. You will probably find many helpful statements in the prior depositions that will assist you in your case. Additionally, research whether the expert has written any articles, books, editorials or the like that may contradict his opinion in your case. Next, determine what school the expert has graduated from and see if any of the professors that taught the expert have different opinions that may be introduced and compared to the expert's opinion at trial.

The trial attorney needs to be thoroughly prepared on the subject that will be the basis of the cross examination. I do not advise taking the expert "head on" within the expert's field, but it is always very helpful to be quite knowledgeable in the area so that if the expert goes too far you may expose him as an advocate or as a hired gun.

A trial attorney should always, always, always cross examine an expert witness. There is nothing worse then allowing an expert witness to give his opinions without challenge. The jury may believe that by failing to cross examine the expert you have accepted the expert's opinion. Now, how should you begin cross examining an expert witness? The most effective way of beginning cross examination is to affect or attempt to affect the expert witness's credibility. To do this, you should attempt to expose his bias. You should always be able to find bias. The expert witness will either be biased because of friendship, money or his relationship with the attorney or the attorney's client. Bringing this out to the jury's attention by using short precise leading questions will be very helpful. Attempt to point out, if possible, the disproportionate amount of time in court which the expert spends in comparison to the amount of time he spends in his given field of expertise. Additionally, point out the number of times that the expert witness has testified on behalf of the particular opposing lawyer or the lawyer's law firm. Point out the number of times the expert has testified for parties that stand for similar things, for example, insurance companies, large manufacturers, big businesses, etc.

After you have exposed the expert's bias, you should attempt to attack his qualifications. No matter how qualified an expert witness may be in a given field, there are probably levels in his field that the expert has not reached. For example, if the expert witness only has a masters degree, you may point out that he lacks a Ph.D. in his given field (you should only do this if your expert has a Ph.D. in his given field). If applicable, you should point out that the expert witness has not published any articles in his learned field, or has not held any teaching positions in colleges or universities. Obviously, you need to discover this information before cross examining the expert witness. One way of learning this background information is by attaining the expert's curriculum vitae or detailed resume well in advance of the trial. Another inexpensive way of attaining information on experts is by serving expert interrogatories on your opponent. See Florida Rules of Civil Procedure 1.280 (4)(1A); Federal Rules of Civil Procedure 26 (4)(A)(i).

Another way of effectively cross examining an expert witness is by making the expert your witness. If you are able to have the opposing expert testify in general principles that are consistent with your theory of the case, you will have succeeded in your cross examination. This may be very difficult to accomplish, but if the expert is honest and if the questions that you are asking cannot be denied, you have a good chance of prevailing. If you ask an expert if the sun shines during daylight hours, when there are no clouds or rain and when there is no eclipse, chances are the expert will admit the sun usually shines. If you ask basic, helpful, leading questions that cannot be denied, the expert will have to admit the facts suggested in your question or appear foolish.

Another way of successfully cross examining the expert witness is by attacking the expert's facts. You will always be able to point out that the expert received his facts and materials from the opposing attorney. Use this to your advantage and use hypothetical questions in order to change the facts so that they are consistent with your theory of the case; then, ask the expert controlled questions within the restricted scenarios that you have presented. This will allow you to tell your version of the case through the opposing expert. Be very careful when you do this so as not to allow the expert too much room when testifying. You should present the hypothetical question in long detailed factual patterns followed by a direct leading question relating to the factually restricted hypothetical. Even if the expert refuses to provide you with a favorable response, you have told the jury your story repeatedly by using the hypothetical question.

Another way to successfully cross examine the expert witness is by impeaching the expert witness with an article, journal or chapter of a book from his field. In your research, you will probably find positions and opinions that are contrary to the expert witness's opinion. Attempt to have the expert witness agree that the author of the article in the journal, or the chapter in the book, or treatise is authoritative or at least a well recognized expert in the field. Next, identify the article or chapter, read the relevant portions that contradict the opinion of the expert, and then ask the expert if he agrees with the statement that you just read. It does not matter whether the expert agrees or disagrees, you have effectively demonstrated to the jury that other published experts do not agree with the opposing witness's position.

Finally, if you consider yourself to be extremely knowledgeable and an expert in the opposing expert's field, you may attempt to directly attack him. WARNING - this is very difficult and dangerous. You should only attempt this if you are sure that you will succeed, or if the expert has made an obvious error in his investigation or in his calculations. Before attacking an expert "head on" you should confer with your own expert to make sure that the direct attack will be successful.

Although there are many different examples of how to effectively cross examine an opposing expert offered in this article, you should only choose two or three areas of attack at trial. If you try all of them you will probably make the cross examination too lengthy or confusing. Moreover, the longer an opposing expert witness is on the stand, the greater the likelihood that the expert will hurt your case. Therefore, when cross examining the opposing expert, be prepared, be thorough, hit your two or three areas of attack, expose the expert's weak points, then politely thank the expert and sit down.

The long-standing tort doctrine of Joint and Several Liability was completely repealed this legislative session.  Now the law will hold Defendants in a tort case responsible only for the percentage of the damages that each caused the Plaintiff to sustain.  In its pure state, the Doctrine of Joint and Several Liability required any Defendant to pay for the damages caused by all Defendants even if the Defendant paying for all the damages was found to be at fault for a small percentage of the damages. 

The abolition of the doctrine of Joint and Several Liability is seen by business interests as a good thing.  The argument is that the law will require all responsible parties to pay only their fair share of the damages caused to a Plaintiff based on the percentage of fault determined by the Jury.  Many consumer and victim groups oppose the change and believe that it will unfairly place the burden of unpaid damages on the victims instead of Defendants who were found to be at fault by a jury. 

In 1999, a major overhaul of the Joint and Several Liability law was undertaken that resulted in a graduated scale based on a comparison of fault of the parties involved.  The 1999 law that remained in effect until this spring contained the following language: 

THE OLD LAW

Florida Statute Section 768.81. Comparative fault

(3) Apportionment of damages.-- In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability, except as provided in paragraphs (a), (b), and (c):

(a) Where a plaintiff is found to be at fault, the following shall apply:

1. Any defendant found 10 percent or less at fault shall not be subject to joint and several liability.
2. For any defendant found more than 10 percent but less than 25 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $200,000.
3. For any defendant found at least 25 percent but not more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $500,000.
4. For any defendant found more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $1 million.

For any defendant under subparagraph 2., subparagraph 3., or subparagraph 4., the amount of economic damages calculated under joint and several liability shall be in addition to the amount of economic and non-economic damages already apportioned to that defendant based on that defendant's percentage of fault.

(b) Where a plaintiff is found to be without fault, the following shall apply:

1. Any defendant found less than 10 percent at fault shall not be subject to joint and several liability.
2. For any defendant found at least 10 percent but less than 25 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $500,000.
3. For any defendant found at least 25 percent but not more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $1 million.
4. For any defendant found more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $2 million.

For any defendant under subparagraph 2., subparagraph 3., or subparagraph 4., the amount of economic damages calculated under joint and several liability shall be in addition to the amount of economic and non-economic damages already apportioned to that defendant based on that defendant's percentage of fault.

(c) With respect to any defendant whose percentage of fault is less than the fault of a particular plaintiff, the doctrine of joint and several liability shall not apply to any damages imposed against the defendant.

THE NEW LAW

            The 2006 law reads as follows: 

Florida Statute Section 768.81. Comparative fault

(3) Apportionment of damages.-- In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability.

CONCLUSION

From a practical perspective, this amendment will require a Plaintiff to bring in every conceivable party as a Defendant in a personal injury or wrongful death case so that each Defendant will be required to pay the appropriate share of damages in the case based on the allocation of fault decided by the Jury.  The amendment ends the common law principle of Joint and Several Liability, which had been watered down over the years by statutory amendments.  For better or worse, Florida is now a true comparative fault state. 

         This article addresses the pros and cons, procedures and methods of consolidating cases.  Florida Rule of Civil Procedure 1.270(a) provides that a court may order a joint hearing or trial of any and all matters at issue in actions involving common questions of law or fact, including ordering consolidation of the actions.  Consolidation may take several forms.  The rule permits the court to combine cases for discovery only, for trial only, or for all purposes. See Fla.R.Civ.P. 1.270(a).  Courts usually consolidate cases to speed up the trial process and to eliminate duplicative trials involving the same parties, issues, and evidence.  See  Maharaj v. Grossman, 619 So. 2d 399 (Fla. 4th DCA 1993) (except in “unusual cases,” consolidation should be granted to ensure the efficient and proper administration of justice).

            You may move to consolidate to pull separate individual actions into one and get a single judgment when the issues and witnesses are the same and the rights of the parties can be determined in one action. See Tommie v. LaChance, 412 So. 2d 439 (Fla. 4th DCA 1982).  You may also consolidate to tie more than one action together for the purposes of trial, although separate judgments or verdicts are rendered for each action. This is known as consolidation for trial. See Shores Supply Co. v. Aetna Cas. & Sur. Co., 524 So. 2d 722 (Fla. 3d DCA 1988)

            The court has broad discretion to decide whether to consolidate cases. Maharaj, 619 So. 2d at 399).  Courts look with favor on a motion to consolidate that promotes judicial economy and does not prejudice the parties. See Wagner v. Nova Univ., Inc., 397 So. 2d 375, 377 (Fla. 4th DCA 1981).  Under the rule, the court may consolidate on its own motion, even over the parties’ objections. Fla.R.Civ.P. 1.270(a).  However, a sua sponte order of consolidation without notice to the parties deprives the parties of due process of law and is reversible error. Morris-Edge Masonry, Inc. v. Tonn & Blank, Inc., 461 So. 2d 1036 (Fla. 4th DCA 1985).

            Cases consolidated for trial do not lose their separate identities. Wagner, 397 So.2d at 377 (consolidation does not merge suits into a single cause, or change rights of the parties, or make those who are parties in one suit parties in another suit).  For example, if a case is consolidated for trial, but not for discovery, discovery in one case cannot be used in the other case. Judgments entered in consolidated cases apply only to the parties named in the judgments.

          You should move to consolidate, especially for discovery purposes, as soon as possible for efficient handling of the case. For example, to save costs by sharing expenses with other parties who must put on the same evidence and to increase the impact of causation evidence, such as when many plaintiffs suffered the same injuries from the same occurrence.  Do not wait too long to consolidate cases because the court may deny a motion that affects the trial date.

The Process: How to Consolidate

            First, determine if a motion to consolidate is best for your client.  Some factors to consider are whether consolidation will: 1) delay your trial date; 2) increase or save expenses; 3) join you in front of a jury with a party who is sympathetic or unsympathetic; 4) join your opponent in front of a jury with a party who is sympathetic or unsympathetic.  Ultimately, you must make the decision in the best interests of your client. 

            If you do decide that consolidation is appropriate for your case, then you must determine if you have grounds to consolidate. Any of the following grounds will support consolidation: 1) the cases involve the same or substantially the same core of operative facts and questions of law; 2) consolidation of the actions avoids unnecessary costs, delays, or the possibility of inconsistent verdicts, Travelers Exp., Inc. v. Acosta, 397 So. 2d 733 (Fla. 3d DCA 1981); 3) consolidation saves judicial resources, see State v. Powell, 721 So.2d 795 (Fla. 1st DCA 1998).

            If you have grounds to consolidate, before cases may be consolidated for trial, they should be set before the same judge. Pages v. Dominguez, 655 So. 2d 864 (Fla. 4th DCA 1995). This type of transfer is done by local or administrative rule and is different from transfers under Fla.R.Civ.P. 1.060. If the cases are not before the same judge, move to transfer the latest filed case to the judge handing the case with the oldest case number.

            In your motion to consolidate, state why the case should be sent to another judge.  Allege the following grounds to support a motion to transfer:  1) the case is substantially the same as the case pending before another judge; and 2) the case pending before the other judge has an older case number.  If you have grounds to consolidate and all the cases to be consolidated are before the same judge, move to consolidate the cases under Florida Rule of Civil Procedure 1.270(a).

            Before serving or filing the motion to consolidate, ask all the attorneys involved in the

separate cases to agree to consolidate.  If all counsel agree to consolidation, have them sign a stipulation.  Next, prepare a proposed agreed order granting the motion to consolidate and submit the motion, stipulation, and agreed order to the court.  If all counsel do not agree to consolidate, submit the motion and a memorandum of law showing why the court should consolidate the cases.  Set the matter for hearing and provide the court with case law that supports consolidation in your case.  Attach any supporting documents to the memorandum, including affidavits that establish good reasons for consolidation.  Be sure to review the local rules or customs for specific rules and guidelines regarding motion practice.

            When you move to consolidate actions, ask the court to indicate which action will continue to exist and which ones will be abated because they have been consolidated with the “continuing” action. The other actions abate upon your filing of the order of consolidation in each court file affected.  Any new pleadings, motions, or other documents in the surviving action will have the caption of the surviving action only and this caption should reflect the case numbers of the consolidated cases. 

“Test” Cases as a Product of Consolidation

            In complex, multiple plaintiff cases, the court may through stipulation and court order allow a “test case” to be tried by one plaintiff to establish liability for all similarly situated plaintiffs.  This cost saving technique is best used when liability is almost certain and the defendant cannot or will not admit liability.  The test case is also tried on damages so that it can be appealed if necessary. The result may then serve as a template for resolution of the remaining cases by settlement. If the remaining cases do not settle, they will be tried on damages, but not liability, because the parties will have stipulated to be bound by the liability result.

Be Wary of an Opponent That Moves to Consolidate

            A party may use consolidation as a delaying tactic.  Courts may be reluctant to consolidate if it will interfere with the timing of events that occur before trial. See Maharaj, 619 So. 2d  at 401 (appellate court reversed refusal to consolidate that would have delayed trial date because, under the specific facts of the case, the efficient administration of justice and possibility of inconsistent verdicts outweighed the interest in proceeding to a speedy trial).  Consolidated cases may not be tried until all cases are ready for trial. Although consolidation with a case that is not yet ready for trial may delay a case that is ready for trial, that alone is insufficient reason to deny consolidation where all other factors favor joint trial. Pages v. Dominguez, 652 So. 2d 864 (Fla. 4th DCA 1995).

            Despite the potential for delay, consolidation can solve or avoid problems such as inefficient management of multiple plaintiff cases arising out of the same facts or occurrences and inconsistent verdicts.  Tommie v. LaChance, 412 So. 2d 439 (Fla. 4th DCA 1982).  Conversely, consolidation can also cause problems, such as delay, Maharaj, 619 So. 2d at 401, difficulties with venue, interference with plaintiff’s selection of the forum, Wagner, 397 So. 2d at 377, added expense, overburdening of judicial resources,  Pages, 652 So. 2d at 867 (Fla. 4th DCA 1995).

            Defendants are more likely to move to consolidate cases because consolidation can

reduce damages.  This is because juries often award less money in cases with one defendant and multiple plaintiffs because the jury perceives that the defendant is paying out a lot of money.  Moreover, if any one of the plaintiffs’ cases is weak, it can weaken all the cases, as juries tend to be most influenced by the plaintiff who is the least appealing.  Consolidation can also save the defendant attorney fees when one attorney represents the defendant in several different but related cases.

            On the other hand, Plaintiffs are often gamblers and are less likely to move to consolidate for the aforementioned reasons.  A weak case on liability will result in a zero verdict for all consolidated cases, but by keeping the cases separate, one weak case does not jeopardize the stronger ones. 

            The decision on whether to consolidate requires in depth knowledge of your case and a multi-tiered analysis of the pros and cons of consolidation.  Undoubtedly, the decision of whether to consolidate is one of the most important decisions you will have to make when faced with it, but careful consideration of the factors listed herein will help to ensure a successful result.

Since the days of "show & tell," "demonstrative type evidence" has been a very important teaching tool. Learning through seeing and hearing things is much easier and more fun. Most jury psychologists, including Amy Singer, believe that people learn much more through seeing and hearing rather than from hearing alone. Accordingly, demonstrative evidence should be used at trial to give the jury a better understanding of your case. The use of demonstrative evidence usually grasps the jury's attention and often has them sitting at the edge of their seats when things like models and objects in the litigation are being shown.

Demonstrative evidence consists of trial exhibits that are admitted in evidence or visual aids that will not be entered in evidence, but are simply used by a witness or by the lawyer to explain matters that are relevant to the trial. Demonstrative evidence includes models, medical devices, diagrams, photographs, sketches, objects at issue, etc.

Before a demonstrative exhibit may be used at trial, a witness should establish that the exhibit looks like and is substantially the same as the object or area in question. If using a model, make sure that it fairly and accurately represents the original and that it has been built to scale. You will need to establish this at trial before the use of the exhibit is allowed. This predicate must often be established through expert testimony. A witness intending on using an exhibit as an aid should first explain that the use of the exhibit will facilitate the presentation of the testimony to the jury. Pursuant to Florida Rule of Evidence, §90.901, "authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Thus, demonstrative exhibits must constitute an accurate and reasonable reproduction of the objects or matters involved in the actual case. Brown v. State of Florida, 557 So.2d 527 (Fla. 1st DCA 1989).

Before a demonstrative exhibit will be allowed to be shown to the jury, it must first be established by a witness that the model is a reasonably exact reproduction or replica of the object involved, that when viewed by the jury it causes them to see substantially the same object or scene as the original in question. Alston v. Shiver, 105 So.2d 785, 791 (Fla. 1958).

If a witness is not able to state that the demonstrative exhibit is in substantially the same condition and appears substantially the same as the object in trial, then such a deficiency will be fatal to the admissibility of the demonstrative exhibit and the court will generally not allow the exhibit to be used during trial. Gencorp, Inc. v. Wolfe, 481 So.2d 109, 111 (Fla. 1st DCA 1983).

If a trial attorney is attempting to keep out an exhibit during trial, the argument that should be made is that the exhibit does not truly and accurately portray what it purports to portray. Additionally, a trial attorney may argue that the exhibit is not necessary in assisting the witness to explain his/her testimony to the jury. Finally, if the model is of the type that may mislead the jury or cause confusion or undue prejudice, then a motion pursuant to Florida Rule of Evidence, §90.403, may be made that the probative effect of the model is greatly outweighed by its prejudice.

The determination as to whether an exhibit accurately represents the object or area in the case is a matter decided by the trial court. Whether to allow the use of a demonstrative exhibit is a matter strictly within the trial court's discretion. Brown v. State of Florida. 557 So.2d 527 (Fla. 1st DCA 1989); Federal Savings & Loan v. Wylie, 46 So.2d 396 (Fla. 1950); Alston v. Shiver, 105 So.2d 785 (Fla. 1958).

A trial attorney who does not use demonstrative exhibits during a trial is at a great disadvantage because chances are the other side will effectively use them. Demonstrative exhibits help to bring the case alive and keeps the jury interested and focused on what is being presented. Demonstrative exhibits should be used anytime the opportunity arises.

Your client should feel fully prepared, informed, and confident before a deposition. This can only be achieved by proper pre-deposition preparation. Make sure to take the time necessary to effectively assist your client in preparing for the deposition.

A successful direct examination can be accomplished by controlling the witness without hampering her ability to testify freely, truthfully, and honestly. This balance can only be reached by thoroughly preparing for the questioning. This article offers some helpful suggestions on preparing and presenting a successful direct examination.

I. Preparing for the Direct

To prepare the direct examination, you should: review the law; determine what essential elements must be proven through each witness; and list the facts and elements that will be established through the witness. Next, you should outline all of the key points that must come out through the testimony of each witness. The outline should set up the foundation necessary for additional testimony, expert testimony, or the introduction of exhibits.

You should prepare a file for each witness. The file should include your outline, copies of the exhibits that will be used with the witness, the relevant deposition, trial supoena, return of process, and any working notes that you have that relate to the witness. Organize the files in alphabetical order.

Prepare to meet with the witness at least one week before the trial in order to evaluate her personality, ability to speak, and manner of dressing. Provide the witness with some suggestions on how she should dress at trial, and how she should handle herself before the jury. Go over the expected testimony with the witness so that you may discuss the key points, the evidentiary foundations necessary to be established at trial, as well as any problem areas that may be encountered during the case. If the deposition of the witness has been taken, give the witness an opportunity to read the deposition well before she takes the stand.

If you are going to ask a witness to work with an exhibit, chart, or other demonstrative aid, allow the witness to see the chart or model before the trial so that the witness will appear comfortable with the exhibit by the trial date. Make sure you show the witness all exhibits that will be introduced through her well before she takes the stand.

Establish a good relationship with the witness by being considerate and pleasant to work with. Make arrangements for a second pre-trial meeting right before the witness takes the stand. During this second pre-trial meeting, you should briefly cover the essential points of the testimony and answer any questions that the witness may have.

Try to anticipate your opposition's evidentiary objections to your direct examination and research the law so that you may present a solid argument against them. Be prepared to proffer the excluded testimony on the record outside of the presence of the jury if the objection is sustained.

II. Direct Examination at Trial

During the trial, develop the direct examination through the use of conversational language. Avoid reading questions to the witness. This will bore the jury and leave them with the feeling that the presentation was rehearsed. You may have your outline present, but use it only as a reference and not as a script. Remember to guide the witness through the testimony so that she does not ramble.

Consider mentally placing yourself in the shoes of a news reporter or investigator at the scene of a breaking story. Wipe out the knowledge that you have of the case and attempt to become educated on the issues through the witness on the stand. Ask the types of questions that a reporter or investigator would ask to become fully informed of what happened in the case. This technique will allow you to view the case from the jury's perspective. Remember you may know everything about the case, but the jury is hearing the testimony for the first time.

The jury's focus of the direct examination should be on the witness and not on you. Unlike cross-examination, you should limit your use of leading questions during a direct examination. The majority of questions should be open-ended, allowing the witness to provide the answer. If you are having a hard time formulating a proper question, start your question with who, what, why, when, where, or how.

Although leading questions are generally not permitted on direct examination, there are many exceptions to this rule. See Florida Statute §90.612(3)(a). Leading questions may be used during a direct examination in the following situations: (1) preliminary matters such as a person's name, address, and background; (2) undisputed facts, for example: "I would like to direct your attention to October 23, 1995, you were in Paris on that day, were you not?"; (3) an adverse or hostile witness Rule 1.450 Fla.R.Civ.Pro., Fla.Stat. §90.608; (4) when a witness has difficulty in speaking; (5) when necessary to refresh a witness's recollection, Fla.Stat §90.613; and (6) when encountering an unwilling, reluctant, or recalcitrant witness. See D.R.P. v. Carrol, 438 So.2d 31 (Fla. 3d DCA in 1993).

Avoid repeating the witness's answer, as well as the use of "habit" utterances such as "uh-huh", "okay", "all right", etc. Try not to jingle your keys or pocket change when questioning. Do not play with your pen, curl your hair, or create any other physical distractions that will take the jury's attention away from the witness. Stay focused on the questions, listen to the answers, and appear very interested.

Do not use a monotone. Instead, change the tone of your voice based upon the importance of the testimony. Highlight the key points of the testimony with the use of voice inflection. Avoid legalese, speak clearly and to the point. Use action words and "word pictures," adjectives and adverbs, in presenting your questions. Attempt to establish a rhythm with the witness and vary your pace so that the testimony is interesting to the jury. This will make your presentation powerful.

Open and close the direct examination with the strongest testimony. Jury psychologists have established that jurors remember best what is heard first and last. Anticipate and isolate the troubling testimony in the middle of the presentation. Placing the difficult part of the testimony in the middle allows you to diffuse your opposition's anticipated cross-examination.

At the end of the examination, thank the witness and sit down. Always try to appear confident during the entire cross-examination.

III. Conclusion

A direct examination must appear fresh, interesting, flowing, and conversational. This sounds easy, but requires a lot of work, research, and preparation. Never underestimate the importance of the direct examination. Set aside enough time in your trial preparation to properly prepare for an effective direct of each witness you anticipate calling at trial. A strong direct examination is an important building block that will lead to your success at trial.

One of the most effective and damaging methods of cross examination used against an expert witness has now been severely curtailed by the Florida Supreme Court in the case of Elkins v. Syken, 21 F.L.W. S159 (Fla. 1996). Trial attorneys are no longer able to obtain unlimited financial information from expert witnesses to determine how much they have made as experts. Id.

Before the Elkins v. Syken case, trial attorneys were allowed to discover how much money expert witnesses made as consultants. This information was used as cross-examination material to show that those experts may be biased or interested in the results of the litigation. It was common for trial attorneys to seek income tax records and similar financial documents to prove the amounts that the experts earned as "hired guns." In Elkins, the Supreme Court opined that the disclosure of personal financial information by expert witnesses was unnecessarily burdensome and intrusive. Id. at S161. The Supreme Court also stated that the entire process had a chilling effect on the availability of expert witnesses, since this type of discovery could discourage qualified witnesses from serving as expert witnesses in litigation. Id.

As a result, expert witnesses no longer have to disclose the total income earned as consultants. They no longer have to provide income tax records or detailed financial information or individual patient medical records in complying with discovery requests. Instead, experts need only generally estimate the number of patients seen, consultations held, and evaluations performed for litigation purposes. Id. at S160-61.

Discovery Guidelines

The Florida Supreme Court also set out discovery guidelines that will limit the scope of discovery as defined in Rule 1.280, Fla. R. Civ. Pro. The guidelines state that experts may be:

• (1) Deposed verbally or in writing. Id. at S160;
• (2) Asked about the pending case in terms of employment and the specific amount of compensation in that case. Id.;
• (3) Asked what expert work he or she generally does, and whether it is primarily for plaintiffs or defendants. Id.;
• (4) Asked to give an approximation of the portion of professional time spent on service as an expert. Experts need not state how much money they earn as experts or provide total annual incomes. What is required is a fair estimate of some reasonable and truthful component of the work such as hours expended or percentage of income earned from working as experts, or the approximate number of evaluations or examinations that they perform in one year. Id.; and
• (5) Required to identify each case in which they have testified for a reasonable period of time defined as about three years. Id. at S160-61.

Although the Elkins case severely limits a trial attorney's ability to expose the potential bias of an expert based on the specific amounts of consultation money earned by that expert in the past, there are still several effective methods that may be pursued that will prove to be effective in demonstrating an expert's potential bias. Consider finding the number of cases that the expert has testified in the past, the names of those cases, the lawyers representing the parties for which the experts testified and the type, and whether the expert testified mostly for plaintiffs or defendants in the past. If the questions are properly combined and asked in a leading fashion, and in a logical sequence, the jury should be left with a complete understanding of the expert's potential bias in a case.

Ancient Documents

Contrary to the title of this article, ancient documents as referred to in the Florida and Federal Evidence Codes are not limited to archeological findings or hieroglyphics. Under the codes, ancient documents encompass, but are not limited to, the following documents which are over 20 years old: letters, records, contracts, maps, title papers, and certificates. Rule 90.803(16) of the Florida Evidence Code and Rule 803(16) of the Federal Rules of Evidence provide that statements in such documents qualify as exceptions to the hearsay rule. Thus, any documents admitted as ancient documents may be presented to the fact finder to prove the truth of the matter asserted in those documents.

Trial lawyers in commercial and products liability cases seeking to introduce documents that can be proven to be authentic and more than 20 years old will, therefore, be able to use statements in the documents to prove their cases. Nevertheless, before a document becomes admissible under the ancient document rule, the trial attorney must establish that the document is genuine or that it is what it purports to be. Ancient documents will be considered real if they are found where expected and if they appear bona fide and not suspicious. See, Fla. Stat. §90.901; Fed. R. Evid. 901(b)(8); see also, Clark v. Cochran, 85 So.250 (1920); Drake v. City of Ft. Lauderdale, 227 So.2d 701 (Fla. 4th DCA 1969); and Yates v. Bass Ranch, Inc., 379 So.2d 710 (Fla. 4th DCA 1980).

Federal Evidence Code, Rule 901(b)(8), deems an ancient document to be authentic if it is established that the paper, " ... is in such condition as to create no suspicion concerning its authenticity, ... and was in a place where it, if authentic, would likely be, and ... has been in existence 20 years or more at the time it is offered."

Unlike the Federal Rule on Authentication of Ancient Documents, the Florida Evidence Code does not specifically address this point; however, under Florida Common Law a document is considered an authentic ancient paper if it can be established that it is at least 30 years old, found in a usual place and not suspicious in appearance. See Clark, 85 So. at 250 and Drake, 227 So.2d at 709.

There does not seem to be any logical basis for the 30-year Florida Common Law rule. Moreover, the Florida cases setting this requirement are all pre-code cases. Additionally, the twenty-year time period requirement for admissibility of ancient documents is supported by Fla. Stat. §92.07, which permits a judgments and decrees of record that are at least twenty years old to be admissible to prove the facts contained therein, and Fla. Stat. §92.08, which similarly allows for the admissibility of deeds and powers of attorney greater than 20 years old for the facts contained therein. Thus, a very persuasive argument may be made in a Florida State Court that an inconspicuous looking document that is 20 years old, and found in a place where it appears to belong, should be deemed authentic as a matter of law. You should cite Federal Rule of Evidence 901(b)(8) in support of this position together with the Florida Hearsay exception on ancient documents, Rule 90.803(16) and the Clark case, 85 So. at 250.

If you encounter an evidentiary problem involving ancient documents while preparing for trial, you should review the cases cited in this article, the applicable Florida and Federal Rules, and be prepared to call a witness during the trial that will be able to establish the age of the document, its genuineness, and its condition. Once you have established that the document is over 20 years old and authentic, it should be received in evidence by the court without complication. Since issues involving ancient documents are not commonly addressed by most trial judges, you should be prepared to submit a concise memorandum of law setting out the applicable rules and case law on the issues so as to assist the court in reaching the correct decision.

Changing Substantive Testimony in Deposition Errata Sheets

As trial lawyers we have all heard or have even said to the witness at the conclusion of a deposition that she has the right to read the deposition transcript to make sure that her testimony was accurately transcribed by the court reporter. The statement was probably followed by advising the witness that she may not change her answers, but may only correct any typographical errors or statements incorrectly transcribed.

The case of Motel Six, Inc. v. Dowling, 17 F.L.W. D.725 (Fla. 1st DCA March, 11, 1992), specifically held that a witness has the right to make substantive changes to deposition testimony in the errata sheets. Contrary to what trial lawyers have been advising witnesses for years, the First District Court of Appeal ruled that errata sheets to a deposition are admissible even though they contain substantive changes to the deponent's testimony. Id.

In that particular case, the witness was deposed, did not waive reading and signing of the deposition and about two weeks before the trial, the witness changed several substantive answers to his deposition. Id. The deposition of the witness was read during trial, including the substantive changes made in the errata sheets. The defense attorney objected to the reading of the changes in the errata sheets, but the trial court overruled the defendant's hearsay objection and allowed the errata sheets to be read to the jury. Id. The First District Court of Appeal affirmed the trial court's ruling and held that the errata sheets were admissible. Id.

The appellate court advised that if the party opposing the errata sheets wanted to cross-examine the witness regarding the changes to the testimony, that the trial lawyer opposing the errata sheets had the obligation to reopen the deposition and cross-examine the deponent regarding the changes made. Id. The court stated that "the burden is on the party objecting to the changes to challenge the weight and credibility of the changes. Nevertheless, the changes will be admissible." Id.

From now on, trial lawyers should advise all deponents that they have the right to read the deposition once transcribed, and make substantive changes to the deposition testimony by making those changes in the errata sheets. The witness will need to explain why the changes were made in the errata sheets. See, Rule 1.310(e) Fla.R.Civ.Pro. If the opposing party wants to challenge the changes, the opposing party should immediately set the deposition of the deponent to question why the changes were made.

Pursuant to Rule 1.310(e), Fla.R.Civ.Pro. Witness Review, it appears that witnesses have always had the right to change deposition answers even if the changes were substantive. The Rule specifically states that: "[i]f the testimony is transcribed, the transcript shall be furnished to the witness for examination and shall be read to or by him unless examination and reading are waived by the witness and by the parties. Any changes in form or substance that the witness wants to make shall be listed in writing by the officer with a statement of the reasons given by the witness for making the changes. The changes shall be attached to the transcript. . . ." [Emphasis Added] Id.

Trial lawyers must properly advise their clients and friendly witnesses that they have the right to change their deposition testimony after they have had an opportunity to read the deposition transcript. On the other hand, an attorney should request that the court reporter immediately advise all parties of any changes made by a deponent to the deposition testimony. If substantive changes were made, the opposing trial attorney should immediately request that the deposition be reopened so that the deponent may be questioned regarding the changes made.

Exculpatory clauses in written agreements are alive and well in Florida. Nevertheless, they are not favored by the courts and are only effective if they plainly and clearly state that the defendant is released from liability for its negligence. O'Connell v. Walt Disney World Co., 413 So.2d at 446.

To be valid, the exculpatory clause must be obvious and unambiguous. "Any attempt to limit one's liability for his negligent act will not be inferred from an agreement unless its intention is expressed and clear in unequivocal terms." [citations omitted] Id. The wording of the exculpatory clause must be so clear and understandable that an ordinary and knowledgeable person will realize what he or she is contracting away. Absent that explicit language, an exculpatory clause will be considered unenforceable as a matter of law. Southworth and McGill v. Southern Bell Telephone & Telegraph Co., 580 So.2d 628, 634 (Fla. 1st DCA 1991); Federal Deposit Insurance Corporation v. Carre, 436 So.2d 227 (Fla. 2d DCA 1983).

Express Assumption of Risk

Express assumption of the risk in a contract is treated equally. The Court, in O'Connell v. Walt Disney World Co., specifically stated that "an expressed, contractual agreement to assume the risk of injury or losses is covered by the same principles which apply to any other exculpatory clause. Thus, in order to be enforceable, the agreement must unambiguously indicate which risks are assumed and will not be interpreted to include losses resulting from the defendant's negligence unless it is clear that the plaintiff so intended." Id. at 447.

If an exculpatory document does not specifically state that the party is released in a case and freed from responsibility for his or her own negligence and tortious acts, and if the language does not clearly release the tortious actor, then the exculpatory language will be deemed legally insufficient. An intent to release or indemnify a party will not be inferred if it does not exist. Id.

Exculpatory Clauses and Minors

Exculpatory clauses in contracts signed by minors are voidable as a matter of law. When dealing with issues involving minor children and agreements, a trial attorney should always remember that a minor plaintiff may render an agreement voidable up and to the time of reaching majority. Orange Motors of Miami, Inc. v. Miami National Bank, 227 So. 2d 717 (Fla. 3d DCA 1969); Liberty Mutual Ins. Co. v. Conley, 152 So. 2d 521 (Fla. 1st DCA 1963); Mossler Acceptance Co. v. Perlman, 47 So. 2d 296 (Fla. 1950); Sparr v. Florida S.R. Co. 6 So. 60 (Fla. 1889).

In cases involving exculpatory documents signed by minor children, a trial attorney attempting to avoid liability should have the minor plaintiff's guardian or parent file a notice voiding the exculpatory agreement; thereby, terminating and canceling the legal effect of the contract. Once the exculpatory clause has been voided by the minor plaintiff or legal guardian, it will have no legal effect. Orange Motors of Miami, Inc. v. Miami National Bank, 227 So. 2d 717 (Fla. 3d DCA 1969); Liberty Mutual Ins. Co. v. Conley, 152 So. 2d 521 (Fla. 1st DCA 1963); Mossler Acceptance Co. v. Perlman, 47 So. 2d 296 (Fla. 1950); Sparr v. Florida S.R. Co., 6 So. 60 (Fla. 1889).

In order to bind a minor to a contract, an adult with authority to bind the minor child's interest must sign on behalf of the minor child. It is questionable whether an adult has the right to sign an exculpatory term that will adversely affect a child's rights in a personal injury claim. See, O'Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. 5th DCA 1982).

Litigation Practice Suggestions

When working on an exculpatory clause issue, determine whether the relevant language is specific and clear. If the agreement's language is vague, ambiguous, or does not clearly release the party from liability, then the exculpatory provision may be deemed insufficient. In that case, a motion for summary judgment should be filed attacking the legal sufficiency of the alleged exculpatory language.

If the exculpatory language is sufficient as a matter of law, the defendant should allege the exculpatory clause as an affirmative defense to any claim, and raise the issues of release, waiver and/or express assumption of the risk by contract. The exculpatory documents should be attached to the pleading setting out the affirmative defense so as to meet the requirements of Florida Rule of Civil Procedure 1.130.

Conclusion

Although strictly construed, exculpatory clauses are valid under Florida law. If properly drafted these contractual limitations may prevent a personal injury or property damage claim from succeeding. Individuals relying on, or challenging, exculpatory provisions should immediately move for summary judgment on the legal sufficiency of the exculpatory clause. This will allow for a rapid resolution of the matter before significant costs and attorneys' fees are incurred by the parties.

Exculpatory Clauses Signed by Minors are Voidable

Florida law is clear that a contract with a minor is voidable. Orange Motors of Miami, Inc. v. Miami National Bank, 227 So.2d 717 (Fla. 3d DCA 1969); Liberty Mutual Ins. Co. v. Conley, 152 So.2d 521 (Fla. 1st DCA 1963); Mossler Acceptance Co. v. Perlman, 47 So.2d 296 (Fla. 1950); Sparr v. Florida S.R.Co. 6 So.60 (Fla. 1889). Florida law specifically recognizes the right of a minor to cancel any release, exculpatory document or contract entered into when the individual is below the age of majority. Id.

The minor-Plaintiff has voided the exculpatory document with the Defendant, Disney World, by virtue of so stating within this motion and by having filed an affidavit and a notice voiding, terminating, and canceling the legal effect, if any, of the document referred to as Defendant's Exhibit "A". (A true copy of Plaintiffs' Notice of Cancellation of Defendant's Exhibit "A" is attached hereto as Plaintiffs' Exhibit "2").

Accordingly, since the minor Plaintiff was only 16 years old when he signed the document and since he has now voided same, the alleged exculpatory provision signed by the minor-Plaintiff is void and invalid. Orange Motors of Miami, Inc. v. Miami National Bank, 227 So.2d 717 (Fla. 3d DCA 1969); Liberty Mutual Ins. Co. v. Conley, 152 So.2d 521 (Fla. 1st DCA 1963); Mossler Acceptance Co. v. Perlman, 47 So.2d 296 (Fla. 1950); Sparr v. Florida S.R.Co., 6 So.60 (Fla. 1889).

B. In Addition to Having Been Voided by the Minor Child, the Subject Exculpatory Document Fails to Release Defendant From Liability

As an additional reason why the Court should grant Plaintiffs' summary judgment on Defendant's affirmative defenses of waiver, release and express assumption of the risk, Plaintiffs state that Defendant's Exhibit "A" does not constitute a valid exculpatory document or express assumption of the risk by the minor because it does not clearly and unequivocally release the Defendant of its own negligence and tortious conduct. Defendant's Exhibit "A" only releases Defendant from a claim based on the minor's negligence in using the Water Sprite and that is already the law in Florida.

Exculpatory clauses are not favored in Florida and are only effective if they plainly and clearly state that the Defendant is released from liability for its own negligence. O'Connell v. Walt Disney World Co., 413 So.2d at 446. "[A]ny attempt to limit one's liability for his own negligent act will not be inferred from an agreement unless such intention is expressed in clear and unequivocal terms." [citations omitted] Id. The wording of the exculpatory clause must be so clear and understandable that an ordinary and knowledgeable person will realize what he or she is contracting away. Absent that explicit language, an exculpatory clause will not be considered valid and will be considered unenforceable as a matter of law. Southworth and McGill v. Southern Bell Telephone & Telegraph Co., 580 So.2d 628, 634 (Fla. 1st DCA 1991); Federal Deposit Insurance Corporation v. Carre, 436 So.2d 227 (Fla. 2d DCA 1983).

In the case at bar, Defendant's Exhibit "A" only states:

"In further consideration for the rental to me of the watercraft/bicycle(s) indicated on the reverse hereof, I agree to assume responsibility for any bodily injury or property damage caused by the negligent operation of the same while rented to me. I understand that operators of watercraft must be at least twelve (12) years of age and that the combined weight of all occupants of Water Sprites may not exceed three hundred (300) pounds."

Changes In The Federal Rules of Civil Procedure

The Federal and Florida Rules of Civil Procedure have been changed in many significant ways. The revisions are important and should be noted. The purpose of this article is to summarize the amendments and revisions so that the trial practitioner may become familiar with them.

There have been significant changes to Rules 5, 15, 24, 35, 41, 44, 45, 47, 48, 50, 52, 53, 63, 72, and 77 of the Federal Rules of Civil Procedure.

Rule 5 - Expressly forbids the Clerk of the Court from refusing to accept papers for filing on the grounds that they are not in strict compliance with form. Anyone who has tried to file something with the clerk's office with time about to expire, only to find out that the format was wrong and that the document could not be filed on a timely basis, will now find relief because of this Rule. Rule 5 also allows the practitioner to file documents by facsimile.

Rule 15 - Allows the relation back of amendments to pleadings. It also prevents an intended defendant who has been misnamed in the complaint from avoiding liability on the basis that the defendant's name was not correctly stated in the complaint before the statute of limitations ran. Thus, if an intended defendant has notice of the action within 120 days of its filing, and knows that except for the mistake in the name, the action was intended to be brought against the defendant, then an amendment allowing the name of the defendant to be corrected will relate back to the date of the original pleading.

Rule 24 - Requires a party challenging the constitutionality of any state's statute affecting public interest to bring it to the Court's attention. The Court must then notify the relevant State Attorney General of the challenge to permit the State to defend the action.

Rule 35 - Physical and mental examinations are no longer limited to examinations by physicians and psychologists. The physical and mental examinations may be conducted by any qualified licensed or certified examiner.

Rule 41 - Rule 41(b) has been replaced for the most part by new Rule 52(c). A defendant may move for dismissal of an action or of any claim against the defendant if the plaintiff fails to prosecute the case or to comply with these rules or any order of the court. Unless the court in its order for dismissal otherwise specifies, a dismissal under this division and any dismissal not provided for in this Rule, other than the dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

Rule 44 - Has been revised to eliminate any requirement for a final certification of authenticity relating to official records of a foreign country if the United States has entered into a treaty with that country. This allows the parties to use the Hague Convention's Rules as a mean of certifying the records of countries that have signed on to the Hague Convention's Agreement.

Rule 45 - Requires a non-party to produce documents, "things" and even submit to an inspection of premises. It minimizes the need for a deposition duces tecum. A non-party opposing the production or inspection of the premises still has a right to claim privilege, but will be required to support the claim with a sufficient basis to enable the demanding party to challenge the privilege claim. Rule 45 allows an attorney to sign a subpoena and to issue the subpoena as an officer of the court. The Rule allows the person under subpoena to seek relief if the request is unreasonable, or not enough time has been allowed for compliance. The person subpoenaed may also seek relief if they are (1) required to travel more than one hundred miles to comply with the subpoena, (2) privileged materials have been requested, or (3) the subpoena subjects the witness to undue burden.

Rules 47 and 48 - Rule 47(b) has been eliminated so that alternate jurors are no longer allowed. Instead, Rule 48, which is a newly enacted Rule, allows all jurors to participate in the verdict unless excused for good cause. The jury panel must not be made up of fewer than six jurors, and not more than 12. All verdicts must be unanimous.

Rule 50 - Motions for a directed verdict and motions for judgment notwithstanding the verdict in a jury trial have been eliminated. They have been replaced by a motion for judgment as a matter of law. A motion for judgment as a matter of law will be granted only if a party has been fully heard with respect to an issue and there is no legally sufficient basis to differ with the moving party. Under Rule 50(a), a motion may be made at any time before the case is submitted to the jury. The motion cannot be made after trial unless it is first made before the case is submitted to the jury. The motion must specifically state its basis and what relief is sought.

Rule 52 - Allows the trial court in a bench trial to enter judgment as a matter of law on any claim that cannot be maintained. The motion may be granted once a proponent has been fully heard regarding that issue, and the court finds against that party on that issue. Rule 52(c) replaces old Rule 41(b). Any party may bring this motion. There is no longer a need to wait until the completion of the presentation of the evidence.

Rule 53 - Has been amended to require Special Masters to serve copies of their reports on all parties.

Rule 63 - Allows a judge to substitute another trial judge for any reason. A substitute judge must establish that he or she may continue the case without prejudice to any of the parties. If the substitution occurs in a bench trial, material witnesses whose testimony are disputed must be recalled at the request of any party.

Rule 72 - Has been changed to require that objections to a Magistrate's Order must be served and filed within ten days after receipt of said Magistrate's Order by the objecting party.

Rule 77 - Allows relief to a party who has missed the deadline to file an appeal because of a clerk's failure to provide that party notice of the entry of judgment.

The above-referenced changes to the Federal Rules of Civil Procedure are important and should be noted by the trial practitioner. It is important that the changes to the Rules be read in their entirety, and be fully digested and understood. There will undoubtedly be other changes to the Federal Rules of Civil Procedure in the near future since the Federal Rules committee is currently working to amend, revise, and change many aspects of the Rules. Future articles will address those changes when they are implemented.

The Florida Supreme Court recently changed Florida law on forum non conveniens in its unanimous decision in Kinney System, Inc. v. Continental Insurance Co., 21 F.L.W. S43 (Fla. 1996). The Kinney decision overturned the longstanding landmark case of Houston v. Caldwell, 359 So.2d 858 (Fla. 1978), which held that the doctrine of forum non conveniens could not be used to dismiss a case whose facts arose in a foreign state or country unless all parties in the case were non-residents of Florida. In other words, if any party in the case was from Florida, then the forum non conveniens doctrine did not apply. Id.

A motion to dismiss based on forum non conveniens is different than a motion to dismiss based on improper venue as set forth in Florida Rule of Civil Procedure 1.140. Whitehead v. National Crane Corp., 466 So.2d 412, 413 (Fla. 3d DCA 1985). A motion for change of venue based on forum non conveniens may be made any time before the case has been substantially discovered or set for trial. Kinney, 21 F.L.W. at S47. A Court is required to have a motion pending before it to dismiss a case based upon forum non conveniens and, accordingly, may not do so sua sponte. Government Employees Ins. Co. v. Burns, 21 F.L.W. D. 181 (Fla. 3d DCA 1/17/96).

Under Kinney, the existence of a Florida party in a case no longer prevents the court from dismissing the case on the basis of forum non conveniens. Id. at S47. The court must now weigh factors that are discussed in this article.

Adequate Alternative Legal Remedy

Before a case may be removed or dismissed on forum non conveniens grounds, a Defendant must establish that there is an adequate alternative legal remedy available in another jurisdiction, and that after weighing all matters, including the parties' and witnesses' convenience and the applicable choice of law questions, that it would make more sense to try the case in a jurisdiction other than Florida.

It is the moving party's burden to establish that dismissal based upon forum non conveniens is appropriate. The Defendant must affirmatively establish that the Plaintiff may enjoy a satisfactory remedy in a more convenient forum. In many cases that arise in foreign countries, it will be difficult for the defendant to establish that there is an adequate legal forum that can replace Florida, since many foreign courts lack adequate legal remedies to protect the litigants.

Private Interest Test

Once the adequate alternative legal remedy requirement has been met, the Court must consider the parties' private interests in deciding whether the alternative forum is appropriate. In weighing out the parties' private interests, the Court will give serious weight to the plaintiff's initial choice of forum.

In examining whether the private interests of the parties favor litigation of these cases in Florida or in an alternative forum, the private interests to be considered are the following: "(a) access to source of proof; (b) availability of process to compel the attendance of witnesses unwilling to testify; (c) cost of obtaining the attendance and testimony of witnesses willing to testify; (d) possibility of a view of the premises, if appropriate; (e) ability of the court to enforce a judgment; (f) advantages and obstacles to a fair trial; and (g) all other practical problems that make trial easy, expeditious, and inexpensive." Id. at S45 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1946)).

If the private interests weigh strongly in favor of the alternative forum and overcome the presumption that favors the Plaintiff's choice of forum, then the trial court may dismiss the case so that it may be filed in the alternative forum.

If the court decides that the advantages and disadvantages of an alternative forum are balanced and that they will not significantly undermine or favor the private interests of any particular party in the case, then the court may consider the next step in the Kinney analysis, which concerns public interests.

The Public Interest Test

The public interest factor is a balancing test based on the public policy of convenience and judicial economy. The test includes an analysis of the case's nexus with Florida, the Court's right to control its docket and right to encourage trial of cases in the jurisdiction where they arose, and the Court's familiarity with foreign law. Using the public interest test, the trial court may dismiss a case when the private interests are at equipoise, if the court determines that retention of jurisdiction will be overburdensome, the community has little interest in the case, or that foreign law will predominate if jurisdiction is retained.

Defendant's Required Stipulations

Before the Court may dismiss the case, it must first be satisfied that the plaintiff can reinstate their suit in the alternative forum without undue inconvenience or prejudice. In other words, the remedy potentially available in the alternative forum cannot be illusory. Id. at S46. To that end, the trial court must obtain a stipulation from the defendant that he will consider the case filed in the new forum as of the date it was first filed in Florida. The trial court must also obtain a stipulation from the defendant that if the plaintiff is unable to try his case in the alternative forum, that the case may be reopened in Florida without prejudice. Finally, the trial court may retain jurisdiction over the Defendant's assets located within Florida if those assets are necessary to execute on a future judgment or to enforce a judicial ruling. Id.

Plaintiff Must Re-file Within 120 Days

If the plaintiff's case is dismissed on the basis of forum non conveniens, then the case must be re-filed in the new forum within 120 days after the date of the Florida dismissal. Failure to re-file within 120 days will result in the loss of all stipulations previously discussed. Id.

The New Rule

The Supreme Court has called upon the Florida Bar Rules of Civil Procedure Committee to draft a new forum non conveniens rule consistent with its decision in the Kinney case. The relevant subcommittee is currently considering the new rule. The rule will appear as Fla. R. Civ. Pro. 1.061, Forum Non Conveniens. An emergency version of the Rule is included in the appendix to the Kinney case, Id. at S47-48.

Affected Cases

The Kinney case impacts on all cases, including those that are pending, unless they have been set for trial, or unless discovery has been substantially completed. Id. at 47. Nevertheless, the standard of review on a Court's ruling on a forum non conveniens motion is whether the Court abused its discretion. Thus, the trial court has great leeway in deciding which cases to dismiss and which to keep.

Conclusion

Although Florida has now joined the majority of states in adopting a substantially similar version of the federal forum non conveniens dismissal rule, it will be interesting to see how long the rule stays in effect in light of the increased number of global transactions, communications, and relationships that exist. The ever-shrinking business world seems to require easier access to Florida's courts. Nevertheless, Florida law regarding the forum non conveniens doctrine is now as stated in Kinney System, Inc. v. Continental Ins. Co.

During closing argument, the attorney for the plaintiff may not ask the jury to place themselves in the place of the plaintiff when deciding how much the plaintiff should be awarded as compensation for the legal wrong in question. If this occurs, the defendant's attorney needs to immediately object and move for a mistrial since this would be considered a violation of the "Golden Rule".

If an argument strikes at that sensitive area of financial responsibility and requests the jury to consider how much they would like to receive under similar circumstances, then the argument violates the "Golden Rule". Metropolitan Dade County v. Zapata, 601 So.2d 239, 241 (Fla. 3d DCA 1992). Trial attorneys may not ask the jury to measure the plaintiff's pain and suffering by putting themselves in plaintiff's shoes. Schreidell v. Shoter, 500 So.2d 228 (Fla. 3d DCA 1986), rev. denied, 511 So.2d 299 (Fla. 1987). The jury should not be asked to mentally go through the same pain and suffering that the plaintiff went through in deciding what damages should be awarded. National Car Rental Systems, Inc. v. Bostic, 423 So.2d 915, 917 (Fla. 3d DCA 1983); State Farm Mutual Automobile Ins. Co. v. Curry, 608 So.2d 587 (Fla. 4th DCA 1992).

On the other hand, it is permissible to ask the jury to consider what damages the plaintiff has suffered. It is also proper to ask the jury to place themselves in the position of compensating the plaintiff for the injuries the plaintiff sustained. Simmonds v. Lowery, 563 So.2d 183 (Fla. 4th DCA 1990). In that case, the plaintiff's attorney, during closing argument requested that the jury "think about what you would pay someone for one day of what you would hear she [plaintiff] has to go through and for the rest of her life." There, the court found that the argument was not a "Golden Rule" violation since it simply requested the jury to consider how much they would pay the plaintiff for damages rather than asking the jury how much they would want to receive if it was their case. The Court found that Plaintiff's counsel asked the jury to do what they are required to do - that is, compensate the plaintiff for injuries sustained once a finding of liability has been made. Id.

If the argument is not directed towards damages, the argument may not constitute a "Golden Rule" violation. In Metropolitan Dade County v. Zapata, 601 So.2d 239, 241 (Fla. 3d DCA 1992) (an automobile rear end collision negligence case), the appellate court found that it was permissible for the defendant's counsel to discuss the possibility of the jury driving a car and realizing that they were about to hit a car in front of them that had suddenly and unexpectedly stopped before them. The Fifth District Court of Appeals found the argument to be permissible because it was not directed to damages. Id.

In order to preserve an objection to a "Golden Rule" violation, it is important that counsel for the defense immediately object to the "Golden Rule" argument. Schreidell, 500 So.2d at 233. The motion for a mistrial should also be made at the time that the improper argument is made. If it is not made contemporaneously with the statement in question, the objection may be waived unless it constitutes a fundamental error. Newton v. South Florida Baptist Hospital, 614 So.2d 1195, 1196 (Fla. 2d DCA 1993); Schreidell, 500 So.2d at 233. If the error is so fundamental as to extinguish a party's rights to a fair trial, then a new trial may be warranted even in the absence of a timely objection or motion for mistrial. Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993).

A contemporaneous motion for mistrial should be made to preserve an appeal on any objection to an improper "Golden Rule" comment made during closing arguments. Griss v. Griss, 526 So.2d 697 (Fla. 3d DCA 1988). The motion for mistrial may be made when the closing argument is finished, but must be made before the jury begins to deliberate. Id. Nevertheless, it is recommended that the objection and motion for mistrial be made contemporaneously with the objectionable so as to avoid any inadvertent waiver of the issue.

FLORIDA STATUTE SECTION 90.803 FORMER TESTIMONY HEARSAY EXCEPTION

Take notice, the former testimony exception to the hearsay rule, Florida Statute Section 90.803 (22), has been changed. This change comes in the form of a legislative amendment which now allows prior sworn testimony to be introduced even if the party that it is being used against was not present when the prior testimony was taken. This change is both controversial and dramatic.

Governor Lawton Chiles vetoed the hearsay amendment, only to be overridden by the legislature. The Florida Supreme Court held that the legislature's override of the Governor's veto was constitutional and valid in Chiles v. Webster, 714 So. 2d 453 (Fla. 1998). As a result, this hearsay exception became law on July 1, 1998.

Under the amended version of the exception on former testimony, prior testimony can be read at trial even if the testimony was given in a completely unrelated case, where party's counsel had no opportunity to cross-examine or otherwise develop the declarant's testimony, and even if counsel had no notice of the testimony. This is a significant departure from the pre-amendment, former testimony exception.

Before the amendment, the party seeking to admit the former testimony was required to establish that the party against whom the testimony was offered had been afforded an opportunity to cross-examine and had a similar motive to develop the testimony. Thus, under the prior version of the rule, a deposition was not admissible against a party unless that party was present and had a similar interest in the case. For example, in Dinter v. Brewer, 420 So. 2d 932, 935 (Fla. 3d DCA 1982), the court held that a deposition from a prior proceeding involving a woman's husband was not admissible against that woman where she was not a party in the prior proceeding, was not present or represented at the prior proceeding, and was not provided notice. Now, it will no longer matter whether the party who examined or cross-examined the declarant in the former proceeding had a similar motive to develop the declarant's testimony as the person against whom the testimony is being offered.

Several questions remain as to the validity of the amendment. It is unresolved whether the amendment violates the exclusive rule-making authority of the Florida Supreme Court, mandated under Article 5, Section 2 of the Florida Constitution. Further, the amendment may violate the due process clause of the Florida Constitution because it denies the party that the testimony is being offered against the right of notice and opportunity to cross examine. see generally Finkley v. John Raffa Lathing, 120 So.2d 9 (Fla. 1960)(privilege of viewing witnesses and cross-examining them under oath is an aspect of due process).

One of the most effective ways of impeaching a witness at trial is through the use of depositions and inconsistent statements. Unfortunately, many trial attorneys do not know how to properly impeach using depositions and inconsistent statements. This results in embarrassing situations for those attorneys. The purpose of this article is to demonstrate a proper method to impeach witnesses on the stand by the use of depositions and inconsistent statements.

Depositions

When a witness makes a statement in trial that is inconsistent with his or her deposition testimony, you should first highlight the question that was answered differently at trial. Make sure that the trial testimony being impeached is a direct inconsistent statement with the deposition given before trial. You should then ask the following questions: 1. Do you remember having had your deposition taken on (state the date)? 2. Do you remember that a court reporter was present at your deposition? 3. Do you remember having been sworn in to tell the truth? 4. Did you tell the truth on that date? 5. (If applicable) Do you remember having your attorney present at your deposition?

After you have set the foundation for the impeachment, then you should ask the witness the following question: "Do you remember having been asked the following question and your giving the following answer." At this point, you should read the question previously asked and the answer given by the witness in the deposition.

Use of Inconsistent Statements in Documents

A similar method may be used to impeach a person using an inconsistent statement in a document such as an affidavit, sworn statement, letter, etc. The trial attorney should first highlight the inconsistent trial testimony that will be impeached. Next, the lawyer should identify and authenticate the document that will show the inconsistent statement given by that same witness. In order to establish the foundation necessary to impeach an individual with the use of an inconsistent statement, the witness should be asked the following questions:

1. Do you remember having given a statement to (person) regarding how the accident occurred? 2. Did you give that statement freely? 3. Who was present when you gave your statement? 4. When was the statement given?

The witness should then be shown the exhibit and asked the following question: "I show you what has been marked as Plaintiff's Exhibit "A" for identification. Is this a copy of your sworn statement?"

Finally, read the relevant portion of the statement that directly contradicts the trial testimony of the witness.

Impeachment through the use of depositions or documented inconsistent statements should be accomplished in an organized fashion and should be performed smoothly and directly. The relevant pages and sections of the deposition should be marked and highlighted beforehand so as not to fumble through pages, lose momentum or control of the witness.

Trial attorneys should consider joining Plaintiffs in the same lawsuit if the action arose out of the same core of operative facts and if the plaintiffs' interests do not conflict. Rule, 1.210, Fla.R.Civ.P. allows any and all persons having a unified interest in a matter to join in a lawsuit as plaintiffs. This Rule also allows any person having an interest in the subject of an action, and in obtaining the relief demanded, to join in the same lawsuit. Joinder is appropriate if each claim arose out of the same factual pattern so that if each matter were brought separately, the plaintiffs causes of action would be identical and their allegations would be the same against the defendant(s). See, Mullray v. Aire-Lok Co., 216 So.2d 801 (Fla. 3d DCA 1968).

Joinder of plaintiffs serves the interests of judicial economy, as well as the interests of all parties joined in the lawsuit, since the costs and administrative burden to all concerned are substantially reduced. Additionally, by having the cases joined for pleading, discovery and trial, much time is saved and inconsistent verdicts by different juries are avoided.

Because of the backlog of cases, and the delays in bringing civil cases to trial, many courts have aggressively sought to join cases for purposes of discovery and trial. This has been done successfully in the Eleventh Judicial Circuit, in and for Dade County in personal injury litigation, and has also been done in mass tort litigation in other states such as Maryland, New Jersey and Texas, where thousands of plaintiffs have been consolidated in a single lawsuit for all purposes.

Pursuant to Rule 1.270(a) Fla.R.Civ.Pro., a trial court may consolidate actions involving common questions of law and fact, or the court may order a joint hearing or trial of any or all matters at issue in the actions. The purpose of the rule is to avoid unnecessary costs or delay. The court may also order a separate trial of any claim in order to avoid prejudice to any party, Rule 1.270(b), Fla.R.Civ.Pro.

It has long been recognized that permitting individuals with similar interests and substantially the same subject matter to present their claims in one lawsuit will serve the ends of justice without violating the acceptable pleading rules and without violating a party's due process rights. Mullray v. Aire-Lok Co., 216 So.2d 801 (Fla. 3d DCA 1968); Slaughtery v. Barnett, 154 So. 134 (Fla. 1934). Joinder of similar claims in a single lawsuit tends to simplify rather than complicate the trial of the cause and will enable the trial court to do complete justice in the subject matter of the litigation. Mullray, 216 So.2d at 803.

If a trial court does not allow multiple claims arising out of the same fact pattern to proceed in a joined case, there may be a tremendous burden created upon all counsel, the parties, the court and the tort system in general. This is because there would be repetitive pleadings, motions, summons and filing fees, discovery depositions, etc. This needless waste of judicial resources should be avoided by allowing joined cases to proceed on a consolidated basis. See, Condominium Owners Organization of Century Village East, Inc. v. Century Village East, Inc., 428 So.2d 384 (Fla 4th DCA 1983). (Joinder was recommended by the appellate court after the failure of a class-action claim.)

Imagine what a nightmare it would be for a trial lawyer to have to prepare and try identically the same case over 100 times. In essence, this is what occurs when joinder of cases is not sought or allowed in mass tort or commercial litigation cases. In W.D. Carbonell v. American International Pictures, 313 So.2d 417, 419 (Fla. 3d DCA 1975), a defendant moved to dismiss the Plaintiffs' complaint for allegedly mis-joining nine (9) plaintiffs' claims against the defendant for breach of contract, accounting, fraud, and deceit. In that case, the Third District Court of Appeals upheld the trial court's order denying the defendant's motion to dismiss for misjoinder, holding that misjoinder of parties is not a ground for dismissal of an action pursuant to Rule 1.250, Fla.R.Civ.P. The Court further stated that if joinder was not allowed, the probable result would lead to judicial waste, including "... nine (9) separate complaints being filed, pre-trial discovery being multiplied nine (9) fold, defendant's records being audited nine (9) separate times, and nine (9) jury trials being held to determine basically the same legal issues." Id. The court concluded by stating that "... it cannot be said that the ends of justice would be served best thereby." Id. at 419.

If the trial court determines that the joined claims should not have been brought together, the court cannot dismiss the case. Misjoinder is not a ground for dismissal. The proper remedy pursuant to Rule 1.250, Fla.R.Civ.P. is severance of the claims that were improperly joined. This would allow the cases to proceed on an individual basis without delaying the cases from proceeding. Harrell v. Hess Oil & Chemical Corp., 287 So.2d 291, 294 (Fla. 1973); Anderson v. Barry D. Brown, 524 So.2d 457 (Fla. 3d DCA 1988); Travellers Express, Inc. v. Acosta, 397 So.2d 733, 737 (Fla. 3d DCA 1981).

The joint handling and trial of otherwise repetitive cases benefits everyone and serves the interests of judicial economy. It also lowers the costs and burden to all parties and the court. Since all parties' rights can be adequately protected and due process requirements met, trial attorneys should seriously consider joining plaintiffs' claims whenever possible.

The purpose of this article is to discuss the modern jury selection methodology and philosophy used by trial lawyers and recommended by jury psychologists throughout the country. The days of asking the prospective jury panel several limited, leading questions about their ability to follow the law and to be fair and unbiased are gone. The current jury selection process requires an open-ended, free discussion with the potential jury members about their feelings, life experiences, and opinions regarding the major issues in the case.

Voir Dire Goals

Jury psychologists have confirmed that the jurors come into the courtroom with preconceived opinions affecting the way they will view the case. These opinions have been formed as a result of their life experiences. Attitudes that stem from life experiences will probably not change despite excellent legal arguments. Accordingly, your primary goal in jury selection should be to properly screen the panel to determine which potential jurors are prejudiced against your case and your client. This will allow you to eliminate the problem jurors.

Your second goal should be to educate the potential jury on the issues in the case. This will allow you to determine if a juror is well suited to decide the case before him or her. It is obvious that some jurors, because of their personal experiences, are better suited to sit on certain juries than others. For example, if one juror is a businessman who has been repeatedly sued for breach of contract, he may not be the best juror in a commercial breach of contract case. Similarly, if a potential juror has been the victim of numerous crimes, she may not be well suited to judge a case involving conversion.

Explain the weaknesses in your case to the jury. This will prove to the jury that you are being completely honest with them. This also takes away the "shock" value of the problems with your case when your opposition raises it.

Your third jury selection goal should be to establish rapport with the jury. This will be the only time where the jury will be able to interact and speak with you. Use a conversational tone when addressing the jury. Make sure that your body language is sending the right message. Try to keep your hands out of your pockets. Prevent crossing your arms or rolling your eyes at any potential juror's response. This type of body language may be interpreted by the jury members as an attack upon them.

Use the Open Forum Approach

In order to maximize the chances of achieving an open, honest discussion with the prospective jury, ask open-ended questions. The old voir dire questions that simply require the jury to follow along nodding their heads and saying "yes, we will be fair," "no, we will not discriminate," "yes, we will follow the law," should be thrown away. Instead, approach jury selection as an open forum for discussion about the issues that will be presented in the case. Use the selection process to probe the jury's feelings regarding those issues. Make sure to ask the jury how they feel about the matters raised. Find out what their personal feelings are.

Remind the jurors that there are no right or wrong answers in voir dire. Explain that you are seeking candid and complete responses. Encourage the jury to speak openly about their feelings and sincerely thank them when they are honest with you, even when you do not agree with them.

Do not be afraid that a potential juror will contaminate the rest of the panel by answering your questions in such a negative way that it will pollute the entire panel. You want to hear how the juror really feels about the things that will be addressed in the trial before that juror is actually empaneled. Make sure to allow the jurors to do the talking. This will be your only opportunity to hear what the jury has to say. You will be doing the talking the rest of the trial. Learn to become a very good listener when it comes to voir dire.

Once a juror candidly states his or her position on a matter, ask the rest of the panel, "How many of you agree with that juror?" Have the jurors that agree raise their hands, and then have them each explain what they believe. By going through this process, you will identify all jurors that have strong feelings about the important aspects of your case. You will then be able to ask the necessary questions to have the biased, prejudiced, or inappropriate potential jurors eliminated for cause without having to use one of your precious peremptory strikes.

To put yourself in the proper state of mind for this type of open forum jury selection, visualize yourself as a talk-show host discussing important matters that will be coming up in the show with the audience before the show begins. The discussion should invite the audience to comment about the topics that will be considered on the show. Go from audience member to audience member reinforcing the issues and seeking their opinions and beliefs.

Determine which audience members raise their hands, talk the most, and seem most informed. Take note of who looks mad, who looks at peace. Evaluate all of this information before exercising your peremptory strikes on the audience.

The Presentation

You will probably be somewhat nervous in the beginning of your voir dire. This is normal. If you are feeling exceptionally nervous, admit it, and explain that you are feeling nervous because the case is very important to your client. By being honest with the jury, you will give them an opportunity to reciprocate and be honest with you.

Consider using an outline that has all the key points you wish to discuss with the jury. This will prevent you from reading to them. Try not to deliver your entire voir dire presentation from behind the podium. Instead, use the podium only when you need to review your outline. The rest of the time, you should have nothing that is physically between you and the jury. Maintain a safe distance from the jury so that they do not feel that you are encroaching upon their space.

Many experienced trial attorneys and judges recommend that attorneys memorize the jurors' last names before they address them. This is certainly very impressive. Nevertheless, if you feel you are too nervous, or you are unable to memorize all potential jurors' last names before questioning them, create a chart where you place each juror's name in the box that corresponds to the seat he or she has in the jury panel. This will allow you to look down occasionally at your jury chart and determine the correct name for each juror.

Trust your gut feeling. Many times, you will look at a juror and, for whatever reason, feel that you are not comfortable with that potential juror. Chances are good that the juror is not feeling comfortable with you, either. In that case, strongly consider using one of your peremptory strikes to eliminate that potential juror from being a decisionmaker in your case.

Jury selection is very challenging. During voir dire, you must ask proper questions, be a good listener, take note of relevant answers, keep track of what every juror said, evaluate the jurors' body language, notice how the jurors interact with each other, consider how the jurors act towards your client, and then evaluate who may be the most dangerous to keep on the panel. Once that is complete, you must then prepare challenges for cause, decide who you will strike using your peremptory challenges, and preserve the record for appeal. Needless to say, jury selection requires proper preparation and thorough execution. Take whatever time is necessary to prepare physically and mentally to conduct a proper voir dire examination using the modern method of questioning. This will greatly increase the likelihood of your deselecting the right jury.

Assistance with Jury Selection

Always have someone assisting you in the jury selection process. Consider using an associate, paralegal, secretary, or friend to sit in the audience taking notes about how the jury reacts to you, your client, and the questions that you are asking. It may be difficult for you to evaluate the entire panel when you are questioning a particular juror. By having another person assisting you in observing the jury, you will be able to monitor the entire panel's response and reaction to your questions.

Make sure to confer with your co-counsel or assistant before you move to strike a potential juror for cause or before you use your peremptory strikes. Speak with your client about his or her feelings regarding the jury. Many times a client will have strong feelings for or against individuals that you should take into consideration before making your final decision to exclude certain individuals from the jury.

Conclusion

Use the modern method of jury selection to improve your success rate at trial. Make sure to prepare for jury selection as thoroughly as you would for an opening statement or closing argument. By taking the voir dire selection process seriously, you will greatly enhance your performance in jury selection.

For purposes of judicial economy and efficiency, a trial lawyer may seek to collectively file a lawsuit involving several plaintiffs against the same defendant or defendants. This should be done only if there is commonality among the issues, the damages, and the plaintiffs. If the theories in the claims are the same, the plaintiffs have suffered the same injuries or damages arising out of the same factual pattern, then a trial lawyer should consider filing a consolidated claim.

If the trial court finds that the actions should not have been joined, the trial judge has the discretion to sever the claims pursuant to Florida Rules of Civil Procedure, 1.250. Nevertheless, the trial court MAY NOT dismiss the cases for any misjoinder. Florida Rule of Civil Procedure 1.250 specifically states that "the proper remedy for misjoinder is severance." See Harrell v. Heiss Oil & Chemical Corporation, 287 So.2d 291 (Fla. 1973); Anderson v. Barry D. Brown, 524 So.2d 457 (Fla. 3d DCA 1988); Travelers Express, Inc. v. Acosta, 397 So.2d 733, 737 (Fla. 3d DCA 1981).

The trial court may not sever the claims and require the plaintiffs to file separate lawsuits or be dismissed. If the court requires such action, it would be tantamount to dismissing the plaintiffs' causes of action for misjoinder. This is prohibited by Rule 1.250. The Third District Court of Appeals in Alanco v. Bystrom, 544 So.2d 217 (Fla. 3d DCA 1989), specifically held that where a trial court makes a factual determination that there is a misjoinder of parties, the Court may sever the parties or order separate trials, but the court may not direct the plaintiffs to refile pending claims and pay filing fees or suffer dismissal on the grounds of misjoinder. 544 So.2d at 217, 218. The Alanco Court went on to state that it is the legal effect of an order rather than its language that defines the trial court's ruling. Id.

Accordingly, judicial economy and efficiency often weights heavily in favor of filing joined and consolidated claims. There should be no risk of dismissal involved inasmuch as Florida law would only allow severance if misjoinder is found by the trial court. In this day and age where complex mass tort litigation and mass ex-contractu litigation is no longer a rarity, but found on a regular basis, courts should interpret the laws allowing consolidation and joinder to benefit all parties and reduce unnecessary litigation expenses. Nevertheless, if the court exercises its discretion and determines that joinder was not proper in a given case, the proper and sole remedy for misjoinder recognized in Florida is severance.

A motion in limine is an excellent tool that a trial attorney should use to eliminate improper matters from being mentioned or introduced during a jury trial. The motion in limine may be considered to exclude improper evidence or arguments. This motion is under-utilized and should be incorporated as an important aspect of your final trial preparation.

Legal Basis for the Motion

A motion in limine is usually based upon the analysis found in Fla. Stat. §90.403 which states: "Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." If you anticipate that your opposition will present unfair, illegal, or repetitive evidence or arguments at trial, you should prepare a motion in limine to prevent this from occurring.

Motions in limine may also be used to prevent the introduction of inadmissible evidence at trial, such as hearsay, parole evidence violations, privileged information, and opinions which lack a proper foundation. A motion in limine may also be used to prevent the opposition from offering embarrassing or humiliating evidence about your client that has little to do with the case. For example, evidence regarding sexual preference was properly excluded in Roby v. Kingsley, 492 So.2d 789 (Fla. 1st DCA 1986). Similarly, evidence regarding a Plaintiff's prior drug use may be excluded as a result of a motion in limine. See Clausell v. Buckney, 475 So.2d 1023 (Fla. 1st DCA 1985); Botte v. Pomeroy, 497 So.2d 1275 (Fla. 4th DCA 1986).

Procedural Considerations

Motions in limine should be prepared well before trial and should be fully briefed. Make sure to argue the motion before the objectionable comments are made or the evidence is shown. Once the illegally prejudicial matter is brought before the jury, no instruction from the court will remove its harmful effect.

Make your motions specific about what you seek to exclude. A motion in limine should be very precise. Set out the anticipated improper argument or evidence and request that no such evidence and/or argument be allowed. You should allege that it is likely that the opposing counsel will attempt to offer the illegal evidence or improper argument. Support your motion with sufficient facts to establish that the challenged matter will inflame the passion, prejudice, hostility, or sympathy of the jury, cause confusion, or consume an inordinate amount of time. You should also argue that if the motion in limine is granted, it will promote judicial economy, since it will shorten the trial and avoid error from being committed.

Preserving the Issue for Appeal

If the trial court denies the motion in limine without prejudice and states that he or she will rule on the matter as it comes up in trial, remember to request that the issue be brought up before the court outside the presence of the jury. This allows the court an opportunity to rule on the motion before the jury hears or sees that which you are attempting to exclude. If the trial court denies the motion in limine, remember to object to the evidence or argument you were attempting to exclude as it is introduced. Swan v. Florida Farm Bureau Ins. Co., 404 So.2d 802 (Fla. 5th DCA 1981). The denial of the motion in limine alone will not preserve the matter for appeal. In order to properly preserve the issue for appellate review, you must also object to the improper argument or evidence every time it is mentioned in court. Id.

If the motion in limine is granted, the party that was attempting to admit the excluded evidence or argument should proffer it during trial, so as to preserve the matter for appellate review. Id. The granting of the motion in limine alone is not reversible error.

When to Make the Motion

The motion in limine should be made prior to trial. Consider raising it at the pretrial conference, after discovery has been taken. Nevertheless, a motion in limine may be raised during the trial itself. You should raise a motion in limine any time that you believe that opposing counsel will make an improper argument, or will attempt to offer evidence that is clearly illegal.

If a motion in limine is granted, then the opposing party, counsel, and witnesses are placed on formal notice not to make any mention of the excluded matters. It is opposing counsel's responsibility to remind his or her client and witnesses not to touch upon the subjects excluded in limine. Violation of the order may result in a mistrial or reversible error. Kreitz v. Thomas, 422 So.2d 1051 (Fla. 4th DCA 1982). The court has the discretion to decide if a violation of a ruling in limine requires a mistrial. Tate v. Gray, 292 So.2d 618 (Fla. 2d DCA 1974).

Conclusion

A motion in limine is one of the most effective defensive weapons that a trial attorney possesses to avoid improper evidence and arguments from reaching the jury. The motion is under-utilized by most trial attorneys. This important asset should be used any time you anticipate that opposing counsel will attempt to introduce improper or illegal evidence or make unfairly prejudicial arguments to the jury. The motion in limine is an efficient, effective, and practical way of testing whether the trial court will allow the challenged evidence or arguments to be made before it is offered to the jury. You should take advantage of the opportunity to exclude dangerous evidence or plan around it by making good use of the motion in limine.

Florida law considers communications between police officers and parties involved in motor vehicle accidents to be privileged. The reasoning behind this privilege is to promote honesty in reporting the facts involved in an automobile crash case to the police.

The Privilege

Pursuant to Fla. Stat. §316.066(4), accident reports are not admissible as evidence in any trial, civil or criminal nor are any statements made by the participants in the accident to the police officer investigating the accident. Florida Statute §316.066(4), states:

each accident report made a by person involved in an accident and any statement made by such person to a law enforcement officer for the purpose of completing an accident report required by this section shall be without prejudice to the individual so reporting. No such report or statement shall be used as evidence in any trial, civil or criminal.

The result of breath, urine, and blood tests administered as provided in §316.1932 or §316.1933 are not confidential and shall be admissible into evidence in accordance with the provisions of §316.1934. The accident report privilege includes all statements made to and by police officers with regards to the investigation of the accident. McTevian v. Schrag, 446 So.2d 1183 (Fla. 4th DCA 1984). The purpose of the accident report privilege is to promote truthfulness in reporting accidents to the police. This helps in the determination of who is truly at fault for the accident. It also assists the State of Florida in making highway safety a priority for all. Department of Motor Vehicles v. Corvin, 527 So.2d 868 (Fla. 1st DCA 1988); rev. den., 534 So.2d 399.

The privilege is intended to benefit the person making the statement and the person involved in the accident so as to allow them to speak truthfully without any prejudice to them in any subsequent civil trial. Id. Additionally, the privilege is intended to benefit the public by enabling the Department of Motor Vehicles to collect relevant information and statistics on persons involved in accidents. Hoctor v. Tucker, 432 So.2d 1352 (Fla. 5th DCA 1983).

The accident report privilege covers any communication made to the police officer by anyone involved in a motor vehicle accident. This includes the driver, the owner of the vehicle, and the occupants of the vehicle at the time of the accident. Brackin v. Boles, 452 So.2d 540 (Fla. 1984); Yost v. State, 542 So.2d 419

The accident report and statements made to the investigating officer may not even be used for impeachment at trial. Wiggen v. Bethel Apostolic Temple, 192 So.2d 796 (Fla. 1966); vacated on other grounds, 201 So.2d 911. Even if someone overhears an individual who was involved in the automobile accident making a report to the police officer, said individual may not testify as to what the involved party said to the investigating officer. Allowing the testimony of an eavesdropper or a witness to the privileged statement at trial would defeat the very purpose of the accident report privilege. See Herbert v. Garner, 78 So.2d 727 (Fla. 1955).

Not Privileged

The accident report privilege does not cover any communication made by eyewitnesses to the accident that were not "involved" in the accident. McTevian, 446 So.2d 1184. In the McTevian case, the testimony of an eyewitness motorist who was following directly behind the car involved in the automobile accident was deemed to not be privileged. The reasoning was that the eyewitness was not required by law to report the accident to the investigating officer and was, therefore, not an individual involved in the accident. Id.

If an eyewitness is somehow responsible for the accident by either forcing a car off the road, or swerving into a lane and causing another motor vehicle to have an accident, that would be sufficient to consider the eyewitness who caused the accident to be "involved" in the accident. Therefore, any communication made by that individual to the police would be considered privileged. Wiggen, 192 So.2d at 796.

The accident report privilege does not protect findings and statements made in criminal or homicide investigation reports. Standely v. White, 326 So.2d 68 (Fla. 1st DCA 1976); State v. Mitchell, 245 So.2d 618 (Fla. 1971). Further, results of field sobriety tests, breath tests, and blood tests are not considered to be confidential communications and are admissible as evidence in civil and criminal cases. Eicholz v. Pepo Petroleum Company, Inc., 475 So.2d 1244 (Fla. 1st DCA 1985), rev. den., 476 So.2d 673.

Police officer's tangible evidence findings at the accident scene are not encompassed within the privilege and may be introduced as evidence. Hammond v. Jim Hinton Oil Company, Inc., 537 So.2d 995 (Fla. 1st DCA 1988). This means that distances, skid marks, resting places of people, cars, and other physical findings are not privileged pursuant to Fla. Stat. §316.066(4). Id. Be aware that the privilege does not apply in criminal trials absent a Fifth Amendment violation. See, State v.Riley, 617 So.2d 340 (Fla. 1993).

Another exception to the accident report privilege exists when the identity of a driver involved in the automobile accident is at issue. For example, if a defendant driver says he was not at the scene of the accident at the time of the accident, the privilege does not apply and the accident report and police officer's testimony may be used at trial to prove the identity of the defendant driver. O'Brien v. Ortiz, 467 So.2d 1056 (Fla. 3d DCA 1985); Sylvester v. State, 557 So.2d 180 (Fla. 3d DCA 1990).

Conclusion

When preparing for the trial of an automobile accident case, use the accident report to guide you and provide you with a basic outline of how the accident may have happened, what parties were involved, and what witnesses are available. Nevertheless, do not plan on moving the report into evidence, unless it meets one of the exceptions stated herein. A trial lawyer must prove how an automobile accident occurred by obtaining witnesses statements, taking photographs, interviewing the client, rather than relying on the accident report to prove his or her case.

In the case of Leapai v. Milton, 17 F.L.W. S61 (Fla. 1992), the Supreme Court held that all of the offer of judgment/settlement statutes are constitutional and valid. The Supreme Court found that Fla.Stat. §§45.061 and 768.79 were not inconsistent with the rule making authority of the Florida Supreme Court. Any conflict between those Statutes and Rule 1.442 Fla.R.Civ.Pro., should be resolved by following the procedural requirements set out in Rule 1.442.

Prior to the Milton decision, the Florida Supreme Court in The Florida Bar Re: Amendment to Rules of Civil Procedure, 557 So.2d 442 (Fla. 1985), had attempted to eliminate the confusion created by the different statutes by expanding Rule 1.442's application. The Supreme Court did not eliminate any of the statutes. It instead, made it clear that if the procedural aspects of the offer of judgment statutes conflicted with the "new and improved" version of Rule 1.442, then the procedures set forth in Rule 1.422 would supersede and control. Id.

The following is a summary of the significant portions of Rule 1.442 and the "Offer Statutes," Fla.Stat. §§45.061 and 768.79:

Applicability

All of the "Offer Statutes and Rule" apply to civil actions for damages whether in tort or contract. The Statutes and Rule do not apply in cases involving class actions, derivative shareholder claims, marital and domestic matters or eminent domain cases. See, Fla.Stat §§45.061; 768.79 and Rule 1.442, Fla.R.Civ.Pro.

Time for Making Offer

Rule 1.442 - The offer to settle must be made at least sixty (60) days after the date of the written appearance of the party to whom the offer is being made. The offer may not be made later than sixty (60) days before trial. A counter-offer may be made within fifteen (15) days from the date that the initial offer was served.

Florida Statute §45.061 - The demand for judgment/settlement cannot be made earlier than sixty (60) days after the service of the complaint and may not be made after sixty (60) days before trial. A counter-offer may be made within forty-five (45) days before trial.

Florida Statute §768.79 - The offer judgment may not be made earlier than sixty (60) days after the filing of the complaint.

How the Offer is Made

Rule 1.442 - The offer is served on the opposing party but not filed with the Court. The offer must be very specific stating clearly that it is made pursuant to Rule 1.442, Fla.R.Civ.Pro. The written offer must also state to whom it is made, the exact dollar amount offered and whether it is inclusive or exclusive of attorney's fees and costs.

Florida Statute §45.061 - The offer must be served on the party to whom it is being made, but it may not be filed with the Court. The body of the offer must state that it is made pursuant to Fla.Stat. §45.061.

Florida Statute §768.79 - Unlike Rule 1.442 and Fla.Stat. §45.061, the offer of judgment/demand for judgment under Fla.Stat. §768.79 must be filed with the Court and served upon the non-offering party.

Time to Accept

Rule 1.442 - The offer must be accepted within thirty (30) days or it will be deemed rejected.

Florida Statute §45.061 - The offer must be accepted within forty-five (45) days or it will be deemed rejected.

Florida Statute §768.79 - The offer must be accepted within thirty (30) days or it will be deemed rejected.

Both statutes and the rule allow the offer to be withdrawn, in writing, before it is accepted by the party to whom it was sent.

How to Accept

Rule 1.442 - If an offer is accepted pursuant to Rule 1.442, the party accepting shall file with the Court both the written offer and written acceptance. The Court shall then enter judgment based upon the acceptance of the offer. The language of the notice accepting the offer should mirror the language of the offer being made.

Florida Statute §45.061 - This statute does not specifically state how the offer of settlement should be accepted, but the procedures stated above for Rule 1.442 should be followed. See Leapai v. Milton, 17 F.L.W. S61 (Fla. 1992).

Florida Statute §768.79 - This statute does not specifically state how the offer of judgment/demand for judgment should be accepted. Nevertheless, it should be accepted in substantially the same manner as stated in Rule 1.442. See Leapai v. Milton, 17 F.L.W. S61 (Fla. 1992).

Once the offer is accepted, either party may submit a proposed final judgment to the Trial Court for entry consistent with the accepted offer.

Sanctions

Rule 1.442 - If the Trial Court determines that the offer of settlement was unreasonably rejected, and resulted in unnecessary delay or in the increase of costs, and if the Trial Court determines that the damages awarded by the jury were twenty-five (25%) percent less than that which was offered by the defendant to the plaintiff, or twenty-five (25%) percent more than that which the plaintiff demanded from the defendant, then the Trial Court may sanction the party that unreasonably rejected the offer. The Court may award as sanctions an amount equal to the reasonable attorney's fees and costs incurred by the offering party after the offer was made.

Florida Statute §45.061 - Sanctions may be awarded by the Court if the offer was unreasonably rejected. The offer is presumed to have been unreasonably rejected by a defendant if the judgment entered is at least twenty-five (25%) percent greater than the offer rejected. The offer is presumed to have been unreasonably rejected by the plaintiff if the judgment entered is at least twenty-five (25%) percent less than the offer rejected. In determining the amount of the sanction, the Trial Court shall award the amount of the offering party's costs and expenses including reasonable attorney's fees incurred after the making of the offer. In accordance with Fla.Stat. §45.061, a Trial Court has no discretion in setting sanctions. The Court must enter sanctions if the requirements of Fla.Stat. §45.061 are met.

Florida Statute §768.79 - The Trial Court may sanction a party unreasonably rejecting an offer when the judgment entered is at least twenty-five (25%) percent less than the offer made by the defendant, or twenty-five (25%) more than the offer made by the plaintiff. The party sanctioned shall be required to pay reasonable costs and attorney's fees incurred by the offering party from the date the offer was made.

If in the Court's discretion, the offer of judgment/demand for judgment under Fla.Stat. §768.79 was not made in good faith, the Trial Court may not sanction the non-offering party.

Admissibility of Offer

None of the "Offer Statutes or Rule" allow the offer to be mentioned, discussed or admitted into evidence during trial. If sanctions are sought or enforcement of the settlement is being requested, then the offer and/or acceptance is admissible in a post trial proceeding. The actual offer and acceptance should be filed with the Court and a motion seeking sanctions or enforcement should be filed and a hearing set.

The purpose of the "Offer Statutes and Rule" is to encourage settlement among litigants by punishing those that unreasonably refuse a fair offer and by rewarding those that make reasonable offers by providing them with the chance to recover attorney's fees and costs. There is no bar against filing more than one offer of judgment or demand for settlement. A trial lawyer is not limited in the number of offers that may be made, nor the amount that may be offered. An offer may be filed for a certain amount and when the time for acceptance expires, another offer may be filed offering a different amount.

Now that we know that the "Offer Statutes and Rule" are constitutional, they should be used to promote the fair resolution of civil cases. If used reasonably and strategically, the "Offer Statutes and Rule" can be very useful tools in civil litigation.

In the case of Leapai v. Milton, 17 F.L.W. S61 (Fla. 1992), the Supreme Court held that all of the offer of judgment/settlement statutes are constitutional and valid. The Supreme Court found that Fla.Stat. §§45.061 and 768.79 were not inconsistent with the rule making authority of the Florida Supreme Court. Any conflict between those Statutes and Rule 1.442 Fla.R.Civ.Pro., should be resolved by following the procedural requirements set out in Rule 1.442.

Prior to the Milton decision, the Florida Supreme Court in The Florida Bar Re: Amendment to Rules of Civil Procedure, 557 So.2d 442 (Fla. 1985), had attempted to eliminate the confusion created by the different statutes by expanding Rule 1.442's application. The Supreme Court did not eliminate any of the statutes. It instead, made it clear that if the procedural aspects of the offer of judgment statutes conflicted with the "new and improved" version of Rule 1.442, then the procedures set forth in Rule 1.422 would supersede and control. Id.

The following is a summary of the significant portions of Rule 1.442 and the "Offer Statutes," Fla.Stat. §§45.061 and 768.79:

Applicability

All of the "Offer Statutes and Rule" apply to civil actions for damages whether in tort or contract. The Statutes and Rule do not apply in cases involving class actions, derivative shareholder claims, marital and domestic matters or eminent domain cases. See, Fla.Stat §§45.061; 768.79 and Rule 1.442, Fla.R.Civ.Pro.

Time for Making Offer

Rule 1.442 - The offer to settle must be made at least sixty (60) days after the date of the written appearance of the party to whom the offer is being made. The offer may not be made later than sixty (60) days before trial. A counter-offer may be made within fifteen (15) days from the date that the initial offer was served.

Florida Statute §45.061 - The demand for judgment/settlement cannot be made earlier than sixty (60) days after the service of the complaint and may not be made after sixty (60) days before trial. A counter-offer may be made within forty-five (45) days before trial.

Florida Statute §768.79 - The offer judgment may not be made earlier than sixty (60) days after the filing of the complaint.

How the Offer is Made

Rule 1.442 - The offer is served on the opposing party but not filed with the Court. The offer must be very specific stating clearly that it is made pursuant to Rule 1.442, Fla.R.Civ.Pro. The written offer must also state to whom it is made, the exact dollar amount offered and whether it is inclusive or exclusive of attorney's fees and costs.

Florida Statute §45.061 - The offer must be served on the party to whom it is being made, but it may not be filed with the Court. The body of the offer must state that it is made pursuant to Fla.Stat. §45.061.

Florida Statute §768.79 - Unlike Rule 1.442 and Fla.Stat. §45.061, the offer of judgment/demand for judgment under Fla.Stat. §768.79 must be filed with the Court and served upon the non-offering party.

Time to Accept

Rule 1.442 - The offer must be accepted within thirty (30) days or it will be deemed rejected.

Florida Statute §45.061 - The offer must be accepted within forty-five (45) days or it will be deemed rejected.

Florida Statute §768.79 - The offer must be accepted within thirty (30) days or it will be deemed rejected.

Both statutes and the rule allow the offer to be withdrawn, in writing, before it is accepted by the party to whom it was sent.

How to Accept

Rule 1.442 - If an offer is accepted pursuant to Rule 1.442, the party accepting shall file with the Court both the written offer and written acceptance. The Court shall then enter judgment based upon the acceptance of the offer. The language of the notice accepting the offer should mirror the language of the offer being made.

Florida Statute §45.061 - This statute does not specifically state how the offer of settlement should be accepted, but the procedures stated above for Rule 1.442 should be followed. See Leapai v. Milton, 17 F.L.W. S61 (Fla. 1992).

Florida Statute §768.79 - This statute does not specifically state how the offer of judgment/demand for judgment should be accepted. Nevertheless, it should be accepted in substantially the same manner as stated in Rule 1.442. See Leapai v. Milton, 17 F.L.W. S61 (Fla. 1992).

Once the offer is accepted, either party may submit a proposed final judgment to the Trial Court for entry consistent with the accepted offer.

Sanctions

Rule 1.442 - If the Trial Court determines that the offer of settlement was unreasonably rejected, and resulted in unnecessary delay or in the increase of costs, and if the Trial Court determines that the damages awarded by the jury were twenty-five (25%) percent less than that which was offered by the defendant to the plaintiff, or twenty-five (25%) percent more than that which the plaintiff demanded from the defendant, then the Trial Court may sanction the party that unreasonably rejected the offer. The Court may award as sanctions an amount equal to the reasonable attorney's fees and costs incurred by the offering party after the offer was made.

Florida Statute §45.061 - Sanctions may be awarded by the Court if the offer was unreasonably rejected. The offer is presumed to have been unreasonably rejected by a defendant if the judgment entered is at least twenty-five (25%) percent greater than the offer rejected. The offer is presumed to have been unreasonably rejected by the plaintiff if the judgment entered is at least twenty-five (25%) percent less than the offer rejected. In determining the amount of the sanction, the Trial Court shall award the amount of the offering party's costs and expenses including reasonable attorney's fees incurred after the making of the offer. In accordance with Fla.Stat. §45.061, a Trial Court has no discretion in setting sanctions. The Court must enter sanctions if the requirements of Fla.Stat. §45.061 are met.

Florida Statute §768.79 - The Trial Court may sanction a party unreasonably rejecting an offer when the judgment entered is at least twenty-five (25%) percent less than the offer made by the defendant, or twenty-five (25%) more than the offer made by the plaintiff. The party sanctioned shall be required to pay reasonable costs and attorney's fees incurred by the offering party from the date the offer was made.

If in the Court's discretion, the offer of judgment/demand for judgment under Fla.Stat. §768.79 was not made in good faith, the Trial Court may not sanction the non-offering party.

Admissibility of Offer

None of the "Offer Statutes or Rule" allow the offer to be mentioned, discussed or admitted into evidence during trial. If sanctions are sought or enforcement of the settlement is being requested, then the offer and/or acceptance is admissible in a post trial proceeding. The actual offer and acceptance should be filed with the Court and a motion seeking sanctions or enforcement should be filed and a hearing set.

The purpose of the "Offer Statutes and Rule" is to encourage settlement among litigants by punishing those that unreasonably refuse a fair offer and by rewarding those that make reasonable offers by providing them with the chance to recover attorney's fees and costs. There is no bar against filing more than one offer of judgment or demand for settlement. A trial lawyer is not limited in the number of offers that may be made, nor the amount that may be offered. An offer may be filed for a certain amount and when the time for acceptance expires, another offer may be filed offering a different amount.

Now that we know that the "Offer Statutes and Rule" are constitutional, they should be used to promote the fair resolution of civil cases. If used reasonably and strategically, the "Offer Statutes and Rule" can be very useful tools in civil litigation.

In the case of Leapai v. Milton, 17 F.L.W. S61 (Fla. 1992), the Supreme Court held that all of the offer of judgment/settlement statutes are constitutional and valid. The Supreme Court found that Fla.Stat. §§45.061 and 768.79 were not inconsistent with the rule making authority of the Florida Supreme Court. Any conflict between those Statutes and Rule 1.442 Fla.R.Civ.Pro., should be resolved by following the procedural requirements set out in Rule 1.442.

Prior to the Milton decision, the Florida Supreme Court in The Florida Bar Re: Amendment to Rules of Civil Procedure, 557 So.2d 442 (Fla. 1985), had attempted to eliminate the confusion created by the different statutes by expanding Rule 1.442's application. The Supreme Court did not eliminate any of the statutes. It instead, made it clear that if the procedural aspects of the offer of judgment statutes conflicted with the "new and improved" version of Rule 1.442, then the procedures set forth in Rule 1.422 would supersede and control. Id.

The following is a summary of the significant portions of Rule 1.442 and the "Offer Statutes," Fla.Stat. §§45.061 and 768.79:

Applicability

All of the "Offer Statutes and Rule" apply to civil actions for damages whether in tort or contract. The Statutes and Rule do not apply in cases involving class actions, derivative shareholder claims, marital and domestic matters or eminent domain cases. See, Fla.Stat §§45.061; 768.79 and Rule 1.442, Fla.R.Civ.Pro.

Time for Making Offer

Rule 1.442 - The offer to settle must be made at least sixty (60) days after the date of the written appearance of the party to whom the offer is being made. The offer may not be made later than sixty (60) days before trial. A counter-offer may be made within fifteen (15) days from the date that the initial offer was served.

Florida Statute §45.061 - The demand for judgment/settlement cannot be made earlier than sixty (60) days after the service of the complaint and may not be made after sixty (60) days before trial. A counter-offer may be made within forty-five (45) days before trial.

Florida Statute §768.79 - The offer judgment may not be made earlier than sixty (60) days after the filing of the complaint.

How the Offer is Made

Rule 1.442 - The offer is served on the opposing party but not filed with the Court. The offer must be very specific stating clearly that it is made pursuant to Rule 1.442, Fla.R.Civ.Pro. The written offer must also state to whom it is made, the exact dollar amount offered and whether it is inclusive or exclusive of attorney's fees and costs.

Florida Statute §45.061 - The offer must be served on the party to whom it is being made, but it may not be filed with the Court. The body of the offer must state that it is made pursuant to Fla.Stat. §45.061.

Florida Statute §768.79 - Unlike Rule 1.442 and Fla.Stat. §45.061, the offer of judgment/demand for judgment under Fla.Stat. §768.79 must be filed with the Court and served upon the non-offering party.

Time to Accept

Rule 1.442 - The offer must be accepted within thirty (30) days or it will be deemed rejected.

Florida Statute §45.061 - The offer must be accepted within forty-five (45) days or it will be deemed rejected.

Florida Statute §768.79 - The offer must be accepted within thirty (30) days or it will be deemed rejected.

Both statutes and the rule allow the offer to be withdrawn, in writing, before it is accepted by the party to whom it was sent.

How to Accept

Rule 1.442 - If an offer is accepted pursuant to Rule 1.442, the party accepting shall file with the Court both the written offer and written acceptance. The Court shall then enter judgment based upon the acceptance of the offer. The language of the notice accepting the offer should mirror the language of the offer being made.

Florida Statute §45.061 - This statute does not specifically state how the offer of settlement should be accepted, but the procedures stated above for Rule 1.442 should be followed. See Leapai v. Milton, 17 F.L.W. S61 (Fla. 1992).

Florida Statute §768.79 - This statute does not specifically state how the offer of judgment/demand for judgment should be accepted. Nevertheless, it should be accepted in substantially the same manner as stated in Rule 1.442. See Leapai v. Milton, 17 F.L.W. S61 (Fla. 1992).

Once the offer is accepted, either party may submit a proposed final judgment to the Trial Court for entry consistent with the accepted offer.

Sanctions

Rule 1.442 - If the Trial Court determines that the offer of settlement was unreasonably rejected, and resulted in unnecessary delay or in the increase of costs, and if the Trial Court determines that the damages awarded by the jury were twenty-five (25%) percent less than that which was offered by the defendant to the plaintiff, or twenty-five (25%) percent more than that which the plaintiff demanded from the defendant, then the Trial Court may sanction the party that unreasonably rejected the offer. The Court may award as sanctions an amount equal to the reasonable attorney's fees and costs incurred by the offering party after the offer was made.

Florida Statute §45.061 - Sanctions may be awarded by the Court if the offer was unreasonably rejected. The offer is presumed to have been unreasonably rejected by a defendant if the judgment entered is at least twenty-five (25%) percent greater than the offer rejected. The offer is presumed to have been unreasonably rejected by the plaintiff if the judgment entered is at least twenty-five (25%) percent less than the offer rejected. In determining the amount of the sanction, the Trial Court shall award the amount of the offering party's costs and expenses including reasonable attorney's fees incurred after the making of the offer. In accordance with Fla.Stat. §45.061, a Trial Court has no discretion in setting sanctions. The Court must enter sanctions if the requirements of Fla.Stat. §45.061 are met.

Florida Statute §768.79 - The Trial Court may sanction a party unreasonably rejecting an offer when the judgment entered is at least twenty-five (25%) percent less than the offer made by the defendant, or twenty-five (25%) more than the offer made by the plaintiff. The party sanctioned shall be required to pay reasonable costs and attorney's fees incurred by the offering party from the date the offer was made.

If in the Court's discretion, the offer of judgment/demand for judgment under Fla.Stat. §768.79 was not made in good faith, the Trial Court may not sanction the non-offering party.

Admissibility of Offer

None of the "Offer Statutes or Rule" allow the offer to be mentioned, discussed or admitted into evidence during trial. If sanctions are sought or enforcement of the settlement is being requested, then the offer and/or acceptance is admissible in a post trial proceeding. The actual offer and acceptance should be filed with the Court and a motion seeking sanctions or enforcement should be filed and a hearing set.

The purpose of the "Offer Statutes and Rule" is to encourage settlement among litigants by punishing those that unreasonably refuse a fair offer and by rewarding those that make reasonable offers by providing them with the chance to recover attorney's fees and costs. There is no bar against filing more than one offer of judgment or demand for settlement. A trial lawyer is not limited in the number of offers that may be made, nor the amount that may be offered. An offer may be filed for a certain amount and when the time for acceptance expires, another offer may be filed offering a different amount.

Now that we know that the "Offer Statutes and Rule" are constitutional, they should be used to promote the fair resolution of civil cases. If used reasonably and strategically, the "Offer Statutes and Rule" can be very useful tools in civil litigation.

A good opening statement paves the way to success at trial. It represents the attorney's first opportunity to persuade the jury in the client's favor. A trial attorney should develop the entire case during the opening and show that the evidence will prove that his or her client should win the case. Many have described the opening as the most important part of the case. This article discusses some of the basic elements that make up a good opening statement.

First and foremost, prepare your opening so that it tells a complete and interesting story. Do your best to avoid a bland, boring discussion of what the evidence will show. The opening should be "alive," well organized and persuasive. The theme of the case should be clearly and concisely presented. Highlight who the important witnesses are and what they will say. Further, you should identify the important documents and demonstrate what they will prove.

Demonstrative evidence should be used during the opening. This will greatly increase the jury's understanding of what the evidence will actually show. Moreover, it directs the jury's attention to important evidence and allows them to recognize it once it is introduced during trial. For example, in a breach of contract case, you should blow up the relevant portion of the contract around which the dispute developed. Show that portion of the contract to the jury and read it to the jury during the opening statement. The opposition has no valid basis to object to your doing this provided that the portion of the contract that you are showing to the jury will be accepted in evidence.

In a personal injury case, you should use diagrams, charts, and/or photo enlargements showing how the incident occurred and what injuries were sustained by your client. Use the charts to explain the complex engineering and medical terms that will be heard throughout the case.

The opening is limited to what the evidence will show. It cannot be argumentative; however, this does not mean that you are prohibited from being interesting, persuasive or from having a little fun during your presentation. Quite the contrary, a successful opening statement should be entertaining and should leave the jury with a feeling that you are right and that your client should win. Deliver the opening with enthusiasm and conviction. Use rhetorical questions to make the jury think about your case. Bring the key issues in the case to the forefront by placing the jury in the controversy through the use of descriptive words and well developed and organized thoughts. Paint a verbal picture of your case.

Fully develop the players in the case. Tell the jury who your clients are and what they are all about. Develop their personalities so that the jury will get to know them and understand them.

In organizing the opening statement, remember that jurors tend to remember best what they hear first and last. Thus, present the strongest evidence in that order. Near the end of your presentation, make statements that will leave the jury with an understanding of what your clients have gone through and what the jury may do to remedy the situation.

The opening statement should also be used to introduce the weak portions of your case and to defend against your opponent's case. This will take the wind out of the opposition's sail and will enhance your credibility because you are being open and honest with the jury. Use the opening to expose your opponent's weaknesses. If you know that your opposition will call a witness whose credibility is questionable, you should mention the credibility problems during the opening. Once the tainted witness takes the stand, the jury will be ready to question the validity of that witness's testimony even before your cross-examination begins. The "defensive" aspect of your opening statement should be sandwiched in the middle of your opening and should not take up more than 10% of your presentation.

If possible, move away from the podium and try to talk to the jury as if you were speaking to a group of friends. This will allow you to speak more freely, openly and relaxed. Do not read your opening. Use as few notes as possible. The opening statement should not be confused with scientific or academic forum. Speak to the jury about your case using easy to understand language.

The opening statement is one of the most crucial aspects of the trial. Accordingly, the opening statement should be fully developed and adequately prepared. Do not rush through the opening. Instead, speak in a manner that is relaxed, easy to understand, entertaining and persuasive. A great opening statement may not win the case by itself; however, it will certainly set the stage for a successful verdict.

During closing argument, remember to keep your personal belief out of the presentation. Instead, direct your comments to the evidence and the law and explain to the jury what conclusions should be reached without stating what "you believe." Teach the jury, use logic, tell stories, but do not provide the jury with your personal opinions about the case. If you do, your case may be reversed.

Evidentiary photographs are extremely effective tools that will greatly assist the trial attorney in presenting his case. In order to ensure the admission of the desired photographs in evidence, the lawyer should decide early in the legal proceedings what photographs he intends to use during the trial, what order he intends on introducing them, and what witnesses will authenticate the photographs. The trial practitioner should also review all photographs that may be introduced at trial against him and, if possible, prepare a written motion in limine on the basis of prejudice to prevent the damaging photographs from being introduced at trial.

Motion practice is an important aspect of every case since it sets the tone of what opposing counsel and the court may expect of you. It is extremely important to appear prepared, controlled, organized, efficient, effective, serious and as a winner to opposing counsel and the judge. In order to succeed in motion practice, you must have a strong knowledge of the rules of civil procedure, evidence, the facts of your case, the substantive law upon which you are bringing your lawsuit and of the specific idiosyncracies of the court that you are practicing before.

When preparing a motion, make sure that you research the law that supports the motion and shepardize all of the cases so as to assure that there is no recent case that destroys your position. When you are sure that you have a winning argument, then precisely, directly and persuasively write the matter in your motion. Do not rely on legalese or generalities. Instead, focus on why the motion should be granted and support it with sufficient facts and law so as to allow the court to quickly agree with you.

If the motion involves complex legal matters, consider preparing a memorandum of law to support the motion. Fight the temptation to prepare a law review article in support of your motion. Instead, prepare a short, but to the point, memorandum that highlights the key cases, statutes or rules that will allow you to win.

If the matter is so complex that it requires a multi-page memorandum, begin the memorandum with a short summary of the key facts and points of law that will support the motion. This will be helpful to a busy judge who may not have time to read your entire memorandum of law. By highlighting the key points in the summary, the Court will promptly understand the gist of your motion.

Make sure to deliver a courtesy copy of the motion and memorandum of law to the judge at least one day before the matter is heard. All too often, litigants show up before a judge for a hearing and then proceed to stack several inches of paper before the court for a fifteen minute hearing. Obviously, the court will not have time to read any of the motions and at best will have to defer his or her ruling on the motion. You should provide the Court with courtesy copies of the case law supporting the motion and memorandum of law. Remember to highlight the relevant portions of the case that support your position.

If there are cases that are contrary to your position, you should mention them and distinguish them. This will provide you with great credibility. As a result, the Court will always look at you for the right answer during the course of the litigation.

Remember to review your motion, memorandum, relevant case law, statutes and rules before the matter is argued. Find the motion and memorandum of law in the file, re-read the cases, statutes and rules, familiarize yourself with the facts and be fully prepared before you walk into the Court's chamber to argue the motion. Too many times you will see experienced attorneys flipping through the file attempting to find the motion and memorandum of law while arguing the matter to the Court. This gives the appearance that you are not prepared or that you are somewhat sloppy in your presentation. Your should organize your argument and file so that you may appear confident, prepared and knowledgeable.

Remember that opposing counsel and the court are "sizing you up". The impression that you leave them with as a result of your performance during motion practice will lead to the ultimate opinion that they have of you as the case progresses. If you perform poorly throughout motion practice, chances are that you will lack credibility by the time the case is tried.

Once you go inside the Court's chamber to argue a motion, do not allow your opponent to intimidate you by speaking poorly of your motion or your position in the case. Instead, remember the strong points of your case, your argument and think positively while visualizing yourself as winning the motion. You should set the goal of winning the motion early in your mind so that by the time you actually argue the motion before the court, you will feel as if you have already experienced the matter and have won. This will increase your confidence during the presentation of the motion.

Motion practice should be taken seriously. You should thoroughly research, prepare, and organize your written motions and oral presentations. The impression that you leave opposing counsel and the Court with as a result of your motion practice will follow you through the end of the trial. Attorneys can develop great or poor reputations as a result of their performances in motion practice.

Prepare motions as if they were going to be published and present your arguments as if they were being televised. The use of this standard will motivate you to properly prepare for each motion and hearing you handle. Remember to always appear confident, prepared, organized, efficient, and as a winner during motion practice. This will lead to your overwhelming success as a trial lawyer.

Remember this change the next time you are selecting alternate jurors.

When involved in a products liability case, obtain information through discovery as well as from applicable government agencies that establish the existence of prior injuries or problems with the product in question. Once you have obtained this information, make sure that you can establish the necessary foundation to use such evidence at trial. When defending a products liability case, consider establishing the foundation necessary to use the safety history of the product in order to establish the lack of danger or lack of knowledge of danger in the product.

The number of cases meeting this tough standard of recovery are limited. It is a trial attorney's responsibility to determine when such a claim exists. If after hearing the facts of a case, a reasonable person would exclaim "outrageous," a claim for intentional infliction of emotional distress should be pursued.

Application of Rule 1.070(J)

Trial Attorneys beware, the Florida Supreme Court in the case of Leslie Pearlstein, M.D. v. William King, 18 F.L.W. S.8 (Fla. Dec. 24, 1992), recently held that the 120 day limit for serving defendants after the initial pleading has been filed applies to complaints filed before the effective date of the Rule.

Rule 1.070(j) - Summons-Time Limit, states that "if service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading and the party on whose behalf service is required does not show good cause why service was not made within that time, the action shall be dismissed without prejudice or that defendant dropped as a party on the Court's own initiative after notice or on motion."

After the Rule was enacted, there was great confusion regarding when the Rule would apply and whether it should apply to cases filed before the effective date of the Rule. The Courts of Appeal were in conflict on how the matter should be decided. Berdeaux v. Eagle Picture Industries, 575 So.2d 1295 (Fla. 3d DCA 1990) rev. denied, 589 So.2d 294 (Fla. 1991) conflicted with King v. Pearlstein, 592 So.2d 1176 (Fla. 2d DCA 1992).

The key question in the Pearlstein v. King case was whether the 120 day time limit for serving a defendant after filing an initial pleading as provided for by Rule 1.070(j) applied to complaints filed before the effective date of the Rule, January 1, 1989. The Supreme Court held that the 120 days time limit applied. Id.

In ruling in favor of the application of the 120 day limit to causes of action pending before January 1, 1989, the Court clarified that it was not ruling that the procedural rule was to be interpreted as a retroactive application. Instead, the Supreme Court made a prospective interpretation of the Rule. That is, the Supreme Court ruled that the plaintiff had to serve the defendant within 120 days from January 1, 1989. The Supreme Court did not rule that before January 1, 1989 there was any obligation to serve any defendant within 120 days. Nevertheless, after January 1, 1989 all cases, even those filed before January 1, 1989, had to be served within 120 days from the date of filing, or from January 1, 1989 if the case was filed before that date. Id.

It is extremely important that claimants who may have a statute of limitations problem, effectuate service of process upon the defendant well within the 120 days time limit. Although the dismissal for failing to serve within 120 days is "without prejudice", the dismissal will in effect be "with prejudice" if a valid statute of limitations defense exists. In order to avoid any unnecessary statute of limitations dismissal, trial practitioners should become accustomed to serving complaints promptly.

The purpose of Rule 1.070(j) is to discourage individuals from filing law suits without actually prosecuting the claims. The Rule also promotes the rapid progression of civil claims. After the Pearlstein case was decided, it appears that the Supreme Court intends on enforcing the Rule.

If a litigant is unable to serve within 120 days, then a motion requesting an extension of time to serve and showing good cause as to why service cannot or will not be accomplished on a timely basis should be filed with the trial court before the expiration of 120 days. Motions of this type will be freely granted by trial courts unless the trial attorney is abusing the system. Hernandez v. Page, 580 So.2d 793 (Fla. 3d DCA 1991). The trial court's findings on the "Good Cause" issue are not appealable. DCA of Hialeah, Inc. v. Lago Grande One Condominum Ass'n, 559 So.2d 1178 (Fla. 3d DCA 1990).

In light of the decision in Pearlstein v. King, trial practitioners should be very careful to comply with, and to enforce, the requirements of Rule 1.070(j). Failure to do so may mean serious problems.

The Ethics of Settlement Brochure

Recently trial attorneys representing Plaintiffs in personal injury cases have been using settlement brochures in an attempt to settle their cases. Settlement brochures are highly effective and clearly set out the entire matters under consideration for the opposing side to review and evaluate. The use of settlement brochures under Florida law is appropriate as long as the matter set forth therein accurately describe the status of the Plaintiff's claim. The settlement brochure may not disclose confidential information, nor may it intentionally misstate the value of the case.

Settlement brochures include candid discussions of liability, causation, and damages. These discussions are supported by witness statements, photographs depicting relevant scenes, products, injuries, the itemization of medical bills, the opinion of economists as to past and future economic damages, opinions of medical doctors and similar professionals establishing the extent of damages, and a demand for settlement consistent with the value of the case and the client's interests.

Before a settlement brochure is sent out, an attorney must be sure that he has settlement authority from the client so as to make sure that the case is not settled below what is expected and acceptable to the client.

The parties have an obligation to convey all settlement offers even if they seem ridiculous to the attorney opposing the settlement offer. This is especially important if a demand for an Offer of Judgement is filed pursuant to Florida Statutes §768.79 is made. The reason this is important is because if the offer is not accepted and depending whether you are a Plaintiff or a Defendant in a case, judgment is entered 25% more or less than the offer, attorney's fees and costs may be awarded against your client from the date that the Offer of Judgment or Demand for Judgment was made.

Sick Buildings and Sick Property: Who is to Blame? What Are the Remedies?

The "Sick" Building

Designers of office buildings in the 1970's, seeking lower energy costs, began to design structures that were completely sealed against the outside environment. Windows were merely ornamental and did not open to permit circulation of fresh air, and soon most offices were totally self-contained. The internal air conditioning and ventilation systems became the sole source of safe, breathable air in the working environment. As more and more office workers found themselves in these sealed buildings, medical researchers began noting an usual pattern of respiratory and other health-related problems among the occupants of these buildings. Unlike cases where the illnesses were related to noxious fumes given off by paint or carpeting, there was no readily identifiable toxic culprit. This phenomenon has been described as the "sick" building syndrome, and is increasingly being attributed to the transmission of biologic aerosols given off by fungi growing in air conditioning and ventilation systems. The harmful effects on office workers who, year in and year out, must breathe this mold dust can be quite severe. See Komatsu v. Board of Trustees, Employees' Retirement System, 687 P.2d 1340 (Haw. Ct. App. 1984); K-Mart Corporation v. Workmen's Compensation Appeal Board, 595 A.2d 758 (Pa. Commw. Ct. 1991); Mendell, "Consistent Patterns of Elevated Symptoms in Air-Conditioned Office Buildings," 80 American Journal of Public Health 1193 (October 1990).

Scattered cases involving office workers suffering from sick building syndrome have only recently begun to surface across the country. In one case, the plaintiff suffered from asthmatic bronchitis caused by contaminants from three allergenic fungi -- penicillium oxalicum, aspergillus ochraceus, and cladosporium cladosporoides -- in the air conditioning vents and ceiling in the office where he worked for 16 years. Komatsu v. Board of Trustees, 687 P.2d 1340, 1345 (Haw. Ct. App. 1984). In another case, an office worker was diagnosed with pulmonary fibrosis. Her doctor testified that this condition was caused by a reaction to aspergillus fumigatus in the office's air conditioning system. K-Mart Corporation v. Workmen's Compensation Appeal Board, 595 A.2d 758,760 (Pa. Commw. Ct. 1991).

Sick building cases have not yet reached the appellate level in Florida. Since this is an area of litigation that has yet to be fully explored, it provides an exciting set of legal challenges for the attorney representing a client who has suffered either personal injury or economic loss caused by sick building syndrome.

Parties to Sick Building Claim

When selecting and evaluating potential parties to a sick building case, a helpful analytical tool is to treat the "sickness" as a defect in design and construction. Those parties whose acts or omissions caused the contamination leading to the plaintiff's injury will then comprise the classes of possible defendants. This approach will also make available, through analogy, case law across several legal doctrines to support the claim. This is especially important since there are, at present, no reported cases involving sick buildings in Florida.

There are two distinct classes of plaintiffs with remedies against different classes of defendants.

The first class of plaintiffs consists of the occupants of the contaminated office space who have suffered physical injury. In the majority of cases, these will be employees. The second plaintiff class is the present possessor of the office space, who has suffered economic losses stemming from the occupants' physical injuries. This plaintiff is likely to be an employer, who is renting the office space from an owner, and has either lost work hours or paid compensation claims due to employee illness. A second member of this plaintiff class might be a landlord/owner who has suffered economic losses as a result of tenant illness, and seeks redress from the seller or original builder of the property.

There are also two classes of defendants in a sick building case. First, are the current owners/operators of the property. This group will include the landowner, the owner's lessee and any subsequent assignor or sub-lessee, if the original tenant is not presently in exclusive physical possession of the premises. The present possessor may also have contracted with a management company to conduct the daily operations of the office space.

Second, are those who were responsible for the design and construction of the building. Any individual or corporation that developed the property, the architect who designed the building or office, and the actual builder, as well as any contractors or subcontractors. Pay particular attention to those contractors and sub-contractors who were involved in the installation of the air conditioning and ventilation systems. Some landlords or possessors may have contracted with a company to inspect, repair or clean the air conditioning unit, and those companies should not be overlooked.

Causes of Action

A sick building case may be brought either in contract or in negligence. Whether an ex contractu claim is available will depend upon the class of plaintiff.

A current owner, such as an employer or landlord, who purchased the property from the developer may be able to pursue a contract claim against that original seller. Thus, an employer whose employees have become ill might recover its damages. The contract action may arise either out of a breach of the express language in the instrument or a breach of either of two implied warranties, merchantability and fitness for a particular purpose. The plaintiff claiming breach of an express warranty should allege that the defendant made written and/or oral representations concerning the condition of the building at the time the plaintiff took possession, and that the existence of defective air conditioning and ventilation puts the seller in violation of those assurances. For breach of implied warranty of merchantability, the plaintiff should allege that the property, as purchased, is not merchantable because of the contamination. In an action for breach of implied warranty of fitness for a particular purpose, the purchaser should allege that the seller knew the property was to be used as office space, and that the contamination renders it unfit to be so used. If the developer suffers pecuniary loss from the contamination (i.e. is sued by a subsequent purchaser of the property) then it will have a similar series of contract actions against the architect, builder, and subcontractors.

For the plaintiff who is a tenant, such as an employer who rents office space from the building's owner, there are two possible causes of action: one based upon the lease, and one grounded in negligence. The count based upon the lease should focus on any language providing for the proper maintenance of common areas, including ventilation and air conditioning systems, and any other provisions concerning health and safety. The tenant's negligence complaint must allege that the owner/landlord had knowledge of the defective contamination or was in a better position to know of it. This will be a particularly effective argument where the plaintiff is only one of many tenants, and the landlord was much better positioned to observe patterns of building-wide respiratory illnesses. A landlord continues to be responsible for latent defects in the property, those the tenant could not reasonably have discovered, even after control of the premises has been turned over to the tenant. Levitz Furniture Co. v. Continental Equities, Inc., 411 So.2d 221 (Fla. 3d DCA 1982) review denied, 419 So.2d 1196 (Fla. 1982). See also White Palms of Palm Beach, Inc. v. Fox, 547 So.2d 269 (Fla. 4th DCA 1989).

Both classes of plaintiffs may have viable negligence claims against both classes of defendants. To prove negligence in a sick building case, you must prove the same elements as in any other personal injury case: duty, breach, causation, and damages. Generally, the owner or occupier of land has a duty to exercise reasonable care for the protection of invitees from latent property defects of which the owner/occupier was aware, or should have been aware. See Ashcroft v. Calder Race Course, 492 So.1309 (Fla. 1986); Anderson v. Walthal, 468 So.2d 291 (Fla. 1st DCA 1985); Storr v. Proctor, 490 So.2d 135 (Fla. 3d DCA 1986); Williams v. Madden, 588 So.2d 41 (Fla. 1st DCA 1991). The plaintiff must take great care to show, through the defendant's knowledge of the plaintiff's sensitivity to allergies, a repeated pattern of respiratory illness among other occupants or some other factual basis, that the defendant had notice of the existence of health problems in the office. See Komatsu v. Board of Trustees, 687 P.2d 1340 (Haw. Ct. App. 1984); K-Mart Corporation v. Workmen's Compensation Appeal Board, 595 A.2d 758 (Pa. Commw. Ct. 1991).

Those defendants involved in the design and construction of the building and work area are also under a duty to exercise reasonable care in the performance of their skills. This includes architects (Conklin v. Cohen, 287 So.2d 56 (Fla. 1973)); builders and contractors, (Parliament Towers Condominium v. Parliament House Realty, Inc., 377 So.2d 976 (Fla. 4th DCA 1979)); management companies; and air conditioning and ventilation cleaning services. The complaint should allege that the improper design, construction or maintenance of the building, air conditioning and ventilation systems led to the contamination that injured the plaintiff.

There is one additional remedy for the injured employee. Florida law requires employers to provide a safe working environment, and an employee injured while working in a sick building may have a claim against the employer for failure to do so. See §440.56 F.S.A. (1991).

Economic Loss Doctrine

In pursuing a negligence claim, the plaintiff should be wary of Florida's economic loss doctrine. Under this rule, there can be no recovery in tort absent personal injury or damage to property. Thus, the plaintiff who seeks compensation in negligence for purely economic losses must argue that the sole theory upon which recovery can be had is negligence. Florida courts have carved out an exception to the economic loss doctrine that does not bar a tort claim for economic losses where there is no alternative means of recovery. See Interfase Marketing, Inc. v. Pioneer Technology Group, Inc., 774 F.Supp. 1351 (Fla. M.D. 1991); Latite Roofing Company, Inc. v. Urbanek, 528 So.2d 1381 (Fla. 4th DCA 1988).

Conclusion

This is an emerging field of law and has been largely untested in the courts. Those individuals and companies who have been damaged by a "sick" building should be able, through the application of standard negligence and contract law, to be made whole again. In particular, the office worker whose health has been grievously effected by an unsafe working environment should find in the courts at least an adequate opportunity to be heard.

At a recent gathering of graduates of the University of Miami School of Law, I spoke with Barry Wax, an excellent criminal defense attorney. I had not seen Barry in a long time and was very interested in what he had been doing for the last 14 years. During the course of our conversation, Barry suggested that I write an article regarding one of his favorite trial subjects: the credibility of attorneys before a jury. During the course of the evening, Barry fully developed his philosophy on trial credibility. His advice: "it is important for the trial attorney to take it on the chin." What Barry meant was that trial attorneys must be honest with the jury and accept the evidence as it is.

"Taking it on the chin" means not ignoring the damaging parts of your case. Rather than trying to explain away obviously negative evidence, it is best to accept that evidence, be accountable and honestly discuss the damaging evidence with the jury. You must always maintain your credibility with the jury. The moment the jury feels that they can not trust you, your case is lost.

Barry's advice to "take it on the chin" is among the best advice that anyone can give a trial lawyer. People are tired of hearing excuses and having responsible parties blame others. Once you establish credibility with a jury, it will be easier to convincingly persuade the jurors to listen to every aspect of your client's case. The jury will accept the truth. This will prove more effective than a twisted, illogical explanation of what might have happened in the case in an attempt to distinguish the damaging parts of the case.

Many are very critical of our jury system. Nevertheless, the jury is an impartial and neutral group. Jurors have no personal or political interest in the case that they judge. The jury is made up of persons from different jobs, professions and backgrounds who come together to resolve the problems of the parties in a particular lawsuit. Jurors deserve a fair and honest presentation of the evidence so that they may properly and fairly adjudicate the facts.

We can help maintain the integrity of our judicial system while promoting the best interest of our clients by being honest, direct and credible before the jury. The next time that you are faced at trial with damaging evidence against your client, remember Barry's advice and "take it on the chin" and then ask the jury to consider all of the other aspects of your case. If you maintain your credibility, your clients and the system will greatly benefit.

It's about 4:30 p.m. on a Friday afternoon in the middle of your trial when an opposing counsel informs you that he has just "found" a witness in your case that he intends to call to testify against you. Of course, this is the first time that you have ever heard of this witness despite having asked for all witnesses names in interrogatory questions, and despite having diligently and properly requested names of all witnesses in each and every deposition you have taken.

After your blood pressure returns to a semi-normal level and you compose yourself, you realize that the right thing to do is to object. You rise from your chair, clear your throat and say "objection." Opposing counsel's acts amount to "trial by ambush." Having said this, you hope that the trial court agrees and grants your motion to strike the witness. But then you think to yourself, what if the trial court wants to hear argument in the case, what do I do? What is the law on this matter? Let us start by reviewing the standard trial order entered by most trial judges in the Eleventh Judicial Circuit, in and for Dade County, Florida. The order setting trial normally states that forty-five (45) days before trial: "Parties shall furnish opposing counsel with a written list containing the names and addresses of all witnesses, (impeachment, rebuttal or otherwise) intended to be called at trial and only those witnesses listed shall be permitted to testify." Most judges will not allow any witness not previously disclosed or ever mentioned, to even get near the courtroom. Nevertheless, there are certain circumstances when a trial judge may be convinced that a witness should be allowed to testify even though they have not been listed prior to the trial. A trial judge may properly allow such witness to testify during the trial if the party presenting the previously undisclosed witness diligently attempted to find said witness and was unsuccessful due to the witness' unavailability and if the attorney can show that the opposing side is not prejudiced, that the trial will not be disrupted and the orderly and efficient trial of the case may continue. Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981).

In Binger, the Supreme Court of Florida held that a trial court may exclude the testimony of a witness whose name has not been disclosed in accordance with the trial court's pre-trial order requiring disclosure of all witnesses when the opposing party is prejudiced, the opposing party does not have independent knowledge of the existence of the undisclosed witness, testimony by the undisclosed witness may disrupt the orderly and efficient trial of the case, and no diligence has been shown in attempting to find the witness prior to the actual trial of the case. Binger, 401 So.2d at 1314.

Prejudice should be demonstrated before the trial court exercises its discretion to exclude the testimony of a witness whose name has not been disclosed in accordance with a pre-trial order. Binger, 401 So.2d at 1313; Hilton, Vincent, Pipkin, et al. v. Robert T. Hamer, et al., 501 So.2d 1365 (Fla. 4th DCA 1987); William Sayad v. James Alley, 508 So.2d 485 (Fla. 3d DCA 1987). (All cases upheld the trial court's refusal to allow undisclosed witnesses to testify.)

It no longer matters that the undisclosed witnesses are being used simply for impeachment or rebuttal purposes at trial. After the Binger decision, the Florida Supreme Court specifically required that "all witnesses names should be exchanged before trial including rebuttal and impeachment witnesses when the pre-trial order so requires." 401 So.2d at 1314.

Nevertheless, the trial court is afforded broad discretion in deciding whether an undisclosed witness should be allowed to testify. William Sayad v. James Alley, 508 So.2d 485 (Fla. 3d DCA 1987); Binger, 401 So.2d at 1313. The trial court will not be reversed unless the judge abused its discretion. The determination as to whether to allow an undisclosed witness to testify during trial largely will be decided if the party opposing the undisclosed witness can show that it will be prejudiced. Binger 401 So.2d at 1314. Green v. Shoop, 249 So.2d 85 (Fla. 3d DCA 1970); See also, Fuller v. Rinebolt, 382 So.2d 1239 (Fla. 4th DCA 1980).

If you apply the above guidelines and rules to your case, you will have no problem in making the right argument that the court should not allow opposing side to try its case by ambush. Chances are you will succeed in preventing the undisclosed witness from testifying in any capacity unless it can be shown that the prejudice can be cured and the undisclosed witness will not substantially endanger the fairness of the proceeding, or disrupt the orderly and efficient trial of the case. Binger, 401 So.2d at 1314.

If you are successful in preventing the undisclosed witness from testifying at trial, you should also move in limine to prohibit any testimony, evidence or other mention of the undisclosed witness during the trial by the opposing counsel. This alone may taint the jury's perception of your case.

When confronted with an opposing counsel's surprise tactic during trial, remember to properly establish your client's prejudice if the surprise tactic is allowed to proceed during trial. Next, convince the court that the prejudice can not be cured and the matter will affect the fairness of the trial, as well as the orderly and efficient process of the case.

Be aware juror’s behavior during voir dire.  If possible, watch prospective juror's facial expressions and body language as you conduct voir dire.  Make notes regarding your impression of each prospective juror and of his or her responses, including body language, as you ask questions.  You may have  an associate, paralegal, or assistant watch prospective jurors while you conduct voir dire.

PEREMPTORY CHALLENGES AND CHALLENGES FOR CAUSE

Be prepared to exercise peremptory challenges against individuals who appear hostile toward you.  See Fla.R.Civ.P. 1.431(d).  “[A] peremptory challenge is, by definition, a challenge that ‘need not be supported by any reason, although a party may not use such a challenge in a way that discriminates against a protected minority.’” Shannon v. State, 770 So. 2d 714, 716 (Fla. 4th DCA 2000).  You should also be thoroughly familiar with the caselaw governing peremptory challenges, especially as it relates to race based challenges.  See generally Dorsey v. State, 868 So. 2d 1192, 1196 (Fla. 2003).   

Excuse individuals for cause when in accordance with Fla. R. Civ. P. 1.431(c).  Particular reasons to excuse a juror for cause may be that the juror believes: there is a crisis of lawsuits, jury verdicts are excessive,  all defendants are liable, there is an insurance crisis, or a juror admits they have a tendency to be unfair.

Your credibility with the jury is tantamount.  Be honest with the jury regarding weak points in the case, like the lack of documentary evidence.  You should also touch on problematic criminal records, prior lawsuits by or against your client,  and if your client has a drug or alcohol‑abuse problem that the other side will exploit.  By addressing these weaknesses head on you gain credibility with the jury.