Interrogatories - Chapter Six

Interrogatories – Chapter Six

A party may only serve 30 interrogatories ( including subparts ) on any party. If a party wants to serve more than 30, it must be with leave of court with good cause shown. 
If the Florida Supreme Court has approved a form of interrogatories for a type of action, the party is required to use the form approved in its initial set of interrogatories. However, the party may reduce or add to the approved form, but the total may not exceed 30, including subparts. 
That is, if certain interrogatories of the court-approved interrogatories are not relevant to your case, delete them or better yet, change them to a question, which is relevant to your case. You do not need leave of court to make that change as long as it does not exceed the 30 limit. 

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Claim of Privilege - Chapter Five

Claim of Privilege – Chapter Five

Fla Stat 90.501-90.506 details the various privileges which may be asserted by a litigant, but Fla Rule of Civil Procedure 1.280 (b)(6) details how to respond and assert the privilege.
A party who responds to or objects to discovery requests and who withholds information otherwise discoverable by asserting that the information is privileged or subject to other protection from discovery must assert a claim expressly and must describe the nature of the documents , communications, or things not produced or disclosed , such that, without revealing the privileges or protected information itself , the description will enable other parties to assess the the applicability of the privilege or protection. 
In other words the objecting party must file a privilege log, so that it can be determined whether the documents or things to be produced are in fact, privileged.  It is important to note that failure to provide a privilege log when objecting on privilege grounds may amount to a waiver of the privilege. 

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cross examination continued

Cross Examination (Continued) – Chapter Four

Chapter 4 – Cross Examination (continued)

  1. Do not repeat your opponent’s direct examination. Why have the trier of fact hear it again?
  2. Primacy and recency. As discussed in Chapter two, your first group of questions and last group of questions should be your strongest.
  3. Have your cross, establish a few strong points. Ask yourself, is this an area that I will want to discuss in closing or is it peripheral?
  4. Lead, Lead, Lead. If the answer is that important, lead the witness to it by asking questions that are answered either yes or no. 
  5. Make a statement and have witness agree with it .
  6. Short concise questions
  7. Obviously, you want to avoid open ended questions and only ask those ,if the answer is unimportant.
  8. Keep control of the witness and keep control of yourself.
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Chapter 3 Cross Examination Robert Singer

Cross Examination – Chapter Three

Chapter 3 – Cross Examination – Yes or No?

Cross-examination is the most anticipated part of most trials, which many writers call an art form.  But the first question that needs to be asked, is whether you should cross-examine at all? Examination is not required of every witness and the attorney shows the judge (or jury) a certain amount of confidence, by stating “ we have no questions for this witness”. Ask yourself the following, before rising to commence your cross-examination.

  1. Has the witness hurt your case? Witnesses who merely establish a foundation or a technical element may not need to be examined further.
  2. Is the witness important? When the witness has a significant role, some type of cross-examination may be required or it may invite a negative comment in closing argument by opposing counsel.
  3. Was the witness credible? The witness may have contradicted your opponent’s other witnesses or simply not be believable.
  4. Did the witness give less than expected on direct examination? Possibly, an important part of his or her testimony was omitted. Why open the door? Possibly, the witness purposely withheld portions of testimony hoping that you would pursue it on cross.
  5. What are your realistic expectations on cross? Do you have any real ammunition to use during cross? If you can’t score points, avoid a cursory inquiry.
  6. What risks do you need to take?  You must always do a risk/benefit analysis. There are very few perfect cases. Therefore, trials always involve a calculated risk. If you have a winner, you want to keep risks at a minimum. If you have a loser, you may need to go for it during cross.

Remember the purpose of cross-examination is to either elicit favorable testimony or to destroy or discredit the witness. Keep that it mind, in your analysis as to whether to cross at all.

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Start Strong, Finish Strong - Chapter Two

Start Strong, Finish Strong – Chapter Two


The Primacy/Recency effect is the observation that information presented in the beginning i.e. Primacy and the end i.e. Recency of a learning episode tends to be retained better than the information presented in the middle

This applies to public speaking as well as to your persuasive writing. As my journalism professor described it as “the Hook (primacy )  and Hammer (recency )  “ . A great example are the writings of opinion columnist Leonard Pitts , Jr.

One need to consider Primacy/Recency as a part of their litigation toolbox. In your Opening and Closing statements, studies have shown that you have 30 to 60 seconds to get your listeners attention . Let the listener ( Judge /Jury)  know why it is important for them to keep on listening.  End strongly with a memorable quote, call to action or a message that will keep the listener ( Judge/Jury)  thinking long after you have finished your remarks .

I would also suggest that Primacy/ Recency also applies to your order of calling witnesses as well as your Direct and Cross Examinations of those who are called to testify. If the judge allows it, try to call your strongest witnesses,  first and last . In your examination of witnesses, particularly cross examination of an adverse witness, your first set of questions should be your strongest set of questions . The first line of questioning should be so strong that the adverse witness starts talking to themselves . And end your questioning with your second strongest set of questions literally knocking themselves out of the witness stand . 


Credit: Various studies on primacy and recency.

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Litigation Tips – Chapter One

Request For Admissions

Florida Rules of Civil Procedure 1.370; Florida Family Law Rules of Procedure 12.370

One can limit the expense of litigation and cost of discovery by effectively using Requests for Admissions.

A party may ask any other party to admit the truth of any matter stated in the written request within the scope of discovery. A party is limited to 30 requests including subparts without approval of the court or the other party. It is important to know, that If the party does not serve a timely response , they are deemed to have been admitted .

The better practice is to timely respond to the request as follows:

(1) Admitting the request; or
(2) Denying the request; or
(3) Giving specific reasons why the request cannot be admitted or denied; or
(4) Stating a proper objection to the request, such as privilege, improper form, relevancy.

Responses must be signed by the attorney or a party if that party is pro se. Requests made under Family Law Rules requires that each request comply with Rule 12.280(a).

An item admitted is conclusively established in the pending action however, a request for a purely legal conclusion is improper. For example, a request that states; Do you admit or deny that you were negligent; is improper. The effect of an admission is similar to that in a pleading. After an admission, no further proof is necessary, and the admission need not be introduced into evidence. The admission is binding upon both parties.

Keep in mind, that If a party does not admit the truth of the matter requested and it is later proven, the requesting party may apply for an order that the answering party pay reasonable expenses, including attorney fees , incurred in making the proof. Again, if the answering party does not file a timely response, the requests are deemed admitted.

Example One :

The following Request was made in a Post Judgment proceeding, where the Former Wife had remarried an extremely wealthy man. The Former Husband was a government employee, without sufficient to funds to carry on the litigation. However, the attorney for the Former Husband had reason to believe that the new Husband had placed his new wife’s name on several banking accounts, all in out of state banking institutions. The Former Wife was evasive when answering the standard interrogatories. So, the attorney for the Former Husband merely used that language in the interrogatory and placed into 6 separate Requests, at $ 500,000 intervals, starting at $500,000.

1. Do you admit or deny , that as of March 1, 2018, that the balance , in all financial accounts ( checking, savings, money markets , credit union accounts or other cash management accounts ) in which you have a legal or equitable interest regardless of whether the interest is or was held in your name individually , in your name with another person or in any other name , exceeds $500,000.

The attorney for the Former Wife had no choice but to admit to all six Requests, which proved she had interests in financial accounts exceeding $3,000,000. With those admissions, the attorney for the Former Husband was then able to set hearings on all his motions involving the issue of ability to pay.

Example Two :

A Father woke up to a text, from the Mother of his 5 year old son , that she and his child, had moved into a an apartment with her new boyfriend in Tallahassee, Fl. His counsel filed an Emergency Motion to Return of Minor Child and a Motion for Contempt . As well, he filed the following Request for Admissions.

1. Do you admit or deny that on March 15, 2019, that you and the minor child moved your principal residence to Leon County, Florida .
2. Do you admit or deny that prior to March 15, 2019, that you and the minor child’s residence was located at 8700 Coral Way Miami, Florida in Miami-Dade County Florida .
3. Do admit or deny that your residence in Leon County, Florida is more than 50 miles from your previous residence in Miami-Dade County, Florida.
4. Do you admit or deny that the Respondent has been declared the Father of your minor child, in the Final Judgment of paternity of February 15, 2018.
5. Do you admit or deny that prior to March 15, 2019, you did not have a written agreement of the Respondent, to change your residence from Miami-Dade County, Florida to Leon County, Florida.
6. Do you admit or deny that prior to March 15, 2019, you did not have permission of the Court to change your residence from Miami -Dade County to Leon County, Florida.
7. Do you admit or deny that three days later, on March 18, 2019 , you sent a text to the Respondent notifying him that you and the minor child had moved to Leon County, Florida.
8. Do you admit or deny that the aforementioned text was the first time that the Respondent was made aware of your change of residence to Leon County, Florida.
9. Do you admit or deny that attached Mediated Settlement Agreement was signed by both parties on February 1, 2018.
10. Do you admit or deny that paragraph 12, of the attached Mediated Settlement Agreement refers to Fla. Statute 61.13001, entitled Parental Relocation with a Child .
11. Do you admit or deny that attached Mediated Settlement Agreement was approved by Court in a Final Judgment of Paternity of February 15, 2018.
12. Do you admit or deny that you and the minor child’s change of residences on March 15, 2019, to Leon County, Florida, violated your Mediated Settlement Agreement of February 1, 2018 which was approved by the court on February 15, 2018.
13. Do you admit or deny that you and your minor child’s change of residence on March 15, 2019 to Leon County Florida, violated Fla. Statute 61.13001.

Although one could argue that Requests 12 and 13 were objectionable, the attorney for the Mother admitted all but Request #8. The matter was settled prior to the hearing on Respondents Emergency Motion to Return Minor Child and Motion for Contempt.

Request for Admissions can be a valuable tool when properly used in your litigation practice.

Credits: Trawicks Florida Practice and Procedure; 2011-2012 Edition Issued in November 2011 by Henry P. Trawick Jr. 

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