CURTIS ALVA* DERRICK HIBBARD** 11 PRETRIAL PREPARATION AND TRIAL PROCEDURES; DIRECT EXAMINATION, CROSS-EXAMINATION, REDIRECT, AND REBUTTAL I. PRETRIAL PREPARATION A. [§11.1] Introduction B. Issues Regarding Exhibits 1. [§11.2] Self-Authentication 2. [§11.3] Hearsay And Business Records 4. [§11.4] Premarking Potential Trial Exhibits C. Simplifying Proof 1. [§11.5] In General 2. [§11.6] Use Of Pretrial Pleadings 3. [§11.7] Requests For Admission 4. [§11.8] Pretrial Stipulations 5. [§11.9] Judicial Notice On Request Of Party 6. [§11.10] Judicial Notice On Court Motion D. [§11.11] Use Of Summaries And Indexes E. [§11.12] Preparation Of Witnesses For Testimony On Direct And Cross-Examination F. [§11.13] Attendance Of Witnesses At Trial *J.D., 1988, Yale University. Mr. Alva is a member of The Florida Bar, and is also admitted to practice in Delaware. He is a partner with Alva & Gleizer, PLLC, in West Palm Beach. **J.D., 2011, University of Miami. Mr. Hibbard is a member of The Florida Bar, and is also admitted to practice in North Carolina. He is an associate with Locke Lord LLP, in West Palm Beach. 11-1 II. DIRECT EXAMINATION OF WITNESSES A. Rules Of Direct Examination 1. [§11.14] Form Of Question 2. [§11.15] Refreshing Recollection Of Witness 3. [§11.16] Judicial Control Of Witness Examination 4. [§11.17] Offer Of Proof 5. [§11.18] Objecting To Admissibility Of Evidence 6. [§11.19] Use Of Interpreters B. Calling Adverse Party Or Hostile Witness 1. [§11.20] In General 2. [§11.21] Adverse Parties 3. [§11.22] Hostile Or Unwilling Witnesses III. CROSS-EXAMINATION A. [§11.23] Scope Of Cross-Examination B. Exceeding Scope Of Direct Examination Testimony 1. [§11.24] In General 2. [§11.25] Prior Inconsistent Statements 3. [§11.26] Prior Convictions 4. [§11.27] Bias And Contradictory Testimony Of Other Witnesses 5. [§11.28] Objections To Cross-Examination IV. REDIRECT EXAMINATION A. [§11.29] Scope Of Redirect Examination B. [§11.30] Use Of Prior Consistent Statements C. [§11.31] Redirect Examination Of Experts D. [§11.32] Additional Case Law V. REBUTTAL A. [§11.33] Admissibility B. [§11.34] Introduction Of Prior Inconsistent Statements VI. EXPERT WITNESS OPINION TESTIMONY A. [§11.35] In General B. [§11.36] Qualifying Expert C. Subjects Of Expert Testimony 1. [§11.37] In General 2. [§11.38] Specialized Knowledge Or Experience 11-2 3. New Or Novel Scientific Principles a. [§11.39] Introduction b. [§11.40] Pre-2013 Amendments To Florida Evidence Code c. [§11.41] Post-2013 Amendments To Florida Evidence Code D. [§11.42] Form Of Opinion E. [§11.43] Basis Of Expert Opinion F. [§11.44] Hypothetical Questions G. Examination Of Expert With Secondary Authority 1. [§11.45] Direct And Redirect Examination 2. [§11.46] Cross-Examination VII. USE OF DEPOSITIONS AT TRIAL A. [§11.47] In General B. [§11.48] Impeachment; Use Of Portion Of Deposition C. [§11.49] Testimony Of Party Or Corporate Representative D. [§11.50] Unavailable Witness E. [§11.51] Expert Witness F. [§11.52] Exceptional Circumstances G. [§11.53] Objections To Admissibility VIII. EXCLUDING WITNESSES; CHANGED OR NEW EXPERT OPINIONS; EXHIBITS A. [§11.54] Invoking Rule Of Sequestration B. [§11.55] Violation Of Sequestration Rule C. [§11.56] Undisclosed Witnesses D. [§11.57] Changed Or New Expert Opinions E. [§11.58] Limitation On Number Of Witnesses F. [§11.59] Undisclosed Exhibits 11-3 I. PRETRIAL PREPARATION A. [§11.1] Introduction This chapter presents issues involved in preparing for and participating in trial under Florida law. This chapter does not include trial or preparation issues that are not addressed in Florida statutes or cases, such as developing a winning case theme, selecting the best order of appearance for witnesses, or effectively structuring witness testimony. There are many helpful publications that practitioners can consult for advice on these subjects, including Mauet, FUNDAMENTALS OF TRIAL TECHNIQUES (Little, Brown & Co. 3d ed. 1992); FLORIDA CIVIL TRIAL PRACTICE (Fla. Bar CLE 11th ed. 2017); Ramirez, FLORIDA CIVIL PROCEDURE (Michie 3d ed. 2002), FLORIDA PRACTITIONER’S GUIDE: CIVIL TRIAL PREPARATION (Fla. Bar CLE 8th ed. 2017). Many of the cases cited in this chapter involve criminal law or other noncommercial litigation subjects. Nevertheless, the evidentiary rulings and principles discussed in these cases apply generally to business litigation. Policy considerations may differ because of the application of the Florida Rules of Criminal Procedure and the desire of the courts to protect, through due process procedures, the rights of the accused, especially those rights guaranteed by the constitution. See Conner v. State, 748 So.2d 950 (Fla. 2000). However, civil litigants, like criminal litigants, are entitled to procedural due process, and the Florida Evidence Code applies to both civil and criminal cases. A court may also apply different considerations on certain evidentiary issues, depending on whether the fact finder is a jury or a judge. Despite these differences and limitations, Florida court opinions in other fields of law can often assist the commercial litigator in preparing for and participating in trial. While preparing, counsel must remember the ethical duties that arise in the context of a trial. These include, but are not limited to, “not . assert[ing] or controvert[ing] an issue [in a proceeding], unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law,” Rule Reg. Fla. Bar 4-3.1; 11-4 not concealing “legal authority in the controlling jurisdiction” known by an attorney “to be directly adverse to the position of the client and not disclosed by opposing counsel,” Rule 4-3.3(a)(3); and not knowingly disobeying “an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists,” as, for example, if the trial court previously entered an order granting a motion in limine to exclude evidence but, at trial, counsel persists in asking questions regarding these excluded matters, Rule 4-3.4(c). See The Florida Bar v. Rubin, 549 So.2d 1000 (Fla. 1989); Vizzi v. State, 501 So.2d 613 (Fla. 3d DCA 1986); and in trial, not alluding to “any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence” and not asserting “personal knowledge of facts in issue” (unless the lawyer is a witness), Rule 4-3.4(e). While gathering and proffering proof, counsel must also consider ethical obligations of candor toward the court and fairness to opposing counsel. Consequently, counsel must not fabricate evidence or permit any witness to offer testimony or other evidence the lawyer knows to be false; nor may an attorney assist a witness to testify falsely. Rules 4-3.3(a)(4), 4-3.4(b). Likewise, an attorney must not “unlawfully alter, destroy, or conceal a document” relevant to the proceeding, nor advise or assist another person in doing so. Rule 4-3.4(a). Absent a few exceptions, an attorney cannot request a nonclient to refrain from voluntarily providing relevant information to another party. Rule 4-3.4(f). While preparing for and participating in a trial, a litigator must follow The Florida Bar’s Rules of Professional Conduct (Chapter 4 of the Rules Regulating The Florida Bar), available at www.floridabar.org → Rules & Ethics → Rules. A lawyer’s conduct should also follow the aspirational guidelines in The Florida Bar’s ”Guidelines for Professional Conduct,” available at www.floridabar.org → Professionalism → Resources → Guidelines for Professional Conduct, promulgated jointly by the Conference of Circuit Court Judges, the Conference of County Court Judges, and the Trial Lawyers Section of The Florida Bar. Although the Guidelines do “not have the force of law[,] trial judges . have the right and obligation to consider on a case-by-case basis issues raised by the 11-5 Guidelines.” “Guidelines for Professional Conduct,” supra, Foreword. These guiding principles are intended to provide direction to lawyers and judges on how to conduct themselves professionally in all phases of trial practice. B. Issues Regarding Exhibits 1. [§11.2] Self-Authentication Florida law requires the authentication of exhibits before their admission into evidence. See F.S. 90.901 (“Authentication or identification of evidence is required as a condition precedent to its admissibility.”). However, F.S. 90.902 lists a number of items that can be self-authenticated, i.e., admitted without extrinsic evidence of authenticity. Most of the things that are self-authenticating are items such as official documents, books, or other printed materials. Because there must be proper authentication before the admission of a videotape or photograph, videotapes and photographs are not self-authenticating. Richardson v. State, 228 So.3d 131 (Fla. 4th DCA 2017); Cirillo v. Davis, 732 So.2d 387 (Fla. 4th DCA 1999). For examples of the use of self-authenticating documents, see Holt v. Calchas, LLC, 155 So.3d 499 (Fla. 4th DCA 2015); MBL Life Assurance Corp. v. Suarez, 768 So.2d 1129 (Fla. 3d DCA 2000); Ferayorni v. Hyundai Motor Co., 711 So.2d 1167 (Fla. 4th DCA 1998); and Monroe County v. McCormick, 692 So.2d 214 (Fla. 3d DCA 1997). If the exhibit does not meet the requirements of F.S. 90.902, it may not be admissible. For a detailed discussion of the authentication of exhibits, see §12.4 of this manual. 2. [§11.3] Hearsay & Business Records An exhibit (or any part of an exhibit) that is deemed hearsay is inadmissible unless it falls within a recognized exception. F.S. 90.802. See F.S. 90.801 (defining “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”).