Litigation

Beyond the Evidence Code and the Rules of Procedure, I recommend certain publications to assist in your preparation for both litigation and trial.

This first publication was not available when I practiced law, nevertheless, I have referred to it at various times as a Special Magistrate. The 2021 Florida Handbook on Civil Discovery Practice is available through The Florida Bar. The Circuit and County Judges got together with the Trial Lawyers section of the Florida Bar and put together an invaluable handbook that addresses almost every issue that will come up in your civil or family litigation practice. I specifically recommend reviewing Chapter Five Proper Conduct of Depositions.

Trial Techniques and Trials by Thomas Mauet is in its 11th edition. It is a comprehensive yet concise handbook that covers all aspects of the trial process and includes excellent examples of opening statements, direct and cross-examination, proper questions to lay the predicate for exhibits, expert witnesses, objections, trial prep and strategy, and more. It is available through Aspen Publishing.

Florida Practice and Procedure by Henry Trawick has a lengthy analysis of each of the Florida Rules of Civil Procedure and has a separate chapter for Family Law actions. The 2024 edition is published by the Harrison Company and available through Thomson Reuters. The new edition is over $1000, however, there are plenty of older albeit used editions available online at a reasonable price.

These are the publications that I would recommend to trial lawyers, no matter how many years they have practiced law. 

First, be sure to receive responses to your expert witness interrogatories and your Expert Request for Production. I would recommend that you review their expert’s report and their discovery responses with your expert. Let your expert educate you and help you understand the topic, opinions, and conclusions of the expert you will be deposing. Your expert may also suggest a line of questioning. It is good practice to bring your own expert to the deposition.

To start the deposition, you should get a copy of the expert witnesses’ file and attach it as an exhibit to the deposition.

I suggest that you obtain information about how and when the expert was retained in the case, what they were told about the purpose of their engagement, and the existence of an engagement letter. I would also inquire about the expert’s compensation including their billing records, time sheets and total compensation paid. It is important to inquire as to the percentage of the expert’s total income that the expert earns from performing expert witness services and what percentage is for plaintiff vs. defendant, husband vs. wife, if applicable. Additionally, you need to know all other matters in which they were retained by opposing counsel or their client.

Inquiry into what communications (conversations, emails, or text) the expert had with opposing counsel, their client or any witness or other third party is appropriate. This may include any communication the expert had with another expert or even with support staff. Furthermore, you need to ask what documents and evidence the expert requested, as well as what documents and evidence the expert reviewed. The expert should be asked which document or evidence he relied upon for his opinion, which he reviewed but did not rely upon, and why.

At this point, you need to know what methodology the expert used in formulating their opinions. You should also ask about all the assumptions the expert made in formulating their opinions. Furthermore, for each opinion, have them specify the basis for each specific opinion. It is advisable that you lock the expert into their opinions so they cannot correct any inconsistencies later.

It is important that, at no time during the deposition you tip your hand to their weakness or flaws in their opinion. Arguing with an expert at this point is useless. Merely say, “thank you” and conclude your questioning. Save your attack for trial.

For those who may not know, the Florida Bar is now requiring all attorneys to watch a two-hour
video on Legal Professionalism, as a part of your CLE requirements. I watched this video and
highly recommend it. The highlight for me was the lecture given by attorney Brian Tannebaum,
which centered on real-life scenarios and practical tips on what to do and more importantly, what
not to do, in specific situations.

Many of you will confuse Legal Professionalism with Legal Ethics, however, they are not
synonymous. As explained in the video, Legal Ethics as defined by Chapter Four of the Florida
Bar Rules are the minimum requirement for an attorney practicing in the state. Legal
Professionalism refers to the expectation that attorneys in our state will do more than the
ground-floor standards. The Florida Bar expects us to pursue and practice the highest ideals
and tenets of the legal profession. The essential ingredients of professionalism as defined by
the Florida Bar are character, competence, commitment, and civility.

A Local Professionalism Panel can resolve professionalism complaints. Although a Panel
cannot discipline a lawyer. If the complaint cannot be resolved informally, the Panel can refer
the matter to The Florida Bar for an investigation into whether the reported conduct violated the
Florida Rules on Professional Conduct. The 11th judicial circuit, 17th judicial circuit, and the 15th
the judicial circuit all have such Panels.

On October 7, 2021 the Florida Supreme Court approved an amendment to the rule above, which requires that when responding to Requests for Production, Written deposition Questions, Interrogatories and Request for Admissions the responding party state each deposition question, interrogatory, or discovery request in full, as numbered, followed by an answer, objection or other response.