Trial

Ten o’clock on the second day

On the first day of Sylvia LoBue’s trial over injuries from a car accident, her lawyer told the judge that his only medical expert could not testify until ten the next morning. The court quit early and agreed to start the second day at ten. The doctor had been served with a subpoena. At ten he was not there, and his office said he was in surgery. The judge refused to wait, so the lawyer offered other exhibits and read parts of two doctors’ depositions to the jury while his requests for more time were turned down. At 11:50 the doctor walked in. The defense objected that his testimony would repeat the deposition and reward the lawyer’s delay, and the judge kept him off the stand. The jury found for the defense.

Nothing that morning turned on how the accident happened. It turned on a subpoena, a clock the judge controlled, and what a court may do when a witness runs late. This reading follows a trial day in order, from the setup before the jury arrives to the moment an exhibit enters the record. At each step it asks two questions: which court’s rule governs, and whose job is the step? The drill in the activity asks you the same two questions six times.

Before the jury comes in

The first question is the forum, because it decides which rulebook answers every other question. A trial in the Circuit Court for Volusia County runs on the Florida Rules of Civil Procedure and the Florida Evidence Code. A trial in the federal courthouse in Orlando runs on the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Each court then adds its own local rules and administrative orders, requirements the statewide or national rulebook never mentions.

Some of those requirements reach the trial team before anyone speaks to a juror. The Middle District of Florida’s Local Rules (opens in a new tab) keep electronic devices out of its courthouses except for listed people, among them members of The Florida Bar and anyone holding a judge’s order. A paralegal who plans to run the exhibit display from a laptop needs that order before trial. The same rules require each party to label every exhibit before trial, with labels from the clerk or the court’s website. Each party also delivers its exhibit list to every opposing party, with three copies for the judge.

State court has its own version. The Seventh Judicial Circuit posts an equipment guide for each of its courthouses on its courtroom resources page (opens in a new tab). It asks anyone who plans to use the courtroom technology to schedule a test at least a week ahead, and it gives no training on the day of trial. Under Florida Rule of Civil Procedure 1.450, the clerk or the judge marks each documentary exhibit with an identifying number when it is introduced. Once it is offered or admitted, the exhibit is filed and stays in the court’s custody.

What the team may bring that morning was settled weeks earlier. A witness or exhibit missing from the exhibit and witness lists can be kept out, so the exhibits carried into court should match the list, item by item.

The witness who has to appear

Sylvia LoBue won her appeal. In LoBue v. Travelers Ins. Co., 388 So. 2d 1349 (Fla. 4th DCA 1980) (opens in a new tab), the Fourth District called excluding a witness “a drastic remedy which should be invoked only under the most compelling circumstances.” The doctor was her only medical witness tying her injury to the accident. The defense’s brief discovery deposition of him was no substitute for live testimony in a trial that turned largely on competing experts. The court ordered a new trial. (The Florida Supreme Court later disapproved the opinion on an unrelated point about general verdicts, not on this one.)

The subpoena made the difference. The court set the case apart from an earlier one that upheld a judge’s refusal to hold court into the evening for a witness not shown to be under subpoena. There, the delay was sought only for the witness’s convenience. Ms. LoBue’s lawyer had done everything the law allowed to bring the doctor in. One detail belongs to the trial team: the lawyer filed the return showing the doctor had been served only after the doctor arrived. Service was never disputed, so it did not matter there. Filing it early is still the safer habit, because the return is the proof: under Florida Rule of Civil Procedure 1.410, the server’s affidavit proves service unless an officer served the subpoena.

A trial subpoena works much the same way in both systems at the start. Under Rule 1.410 the clerk or any attorney of record issues it, and any nonparty adult may serve it. Federal Rule of Civil Procedure 45 (opens in a new tab) also lets any nonparty adult serve a subpoena. It adds a limit on reach: a federal subpoena generally cannot make a witness travel more than 100 miles from where the witness lives, works, or regularly does business in person. Rule 1.410 sets a county limit only for depositions. The fee differs too. A federal witness is paid $40 a day under 28 U.S.C. § 1821 (opens in a new tab), and a witness in a Florida court is paid $5 a day plus 6 cents a mile under section 92.142, Florida Statutes.

When a witness is out of reach, both systems fall back on the witness’s deposition. Federal Rule of Civil Procedure 32(a)(4)(B) allows it for a witness more than 100 miles from the trial. Florida Rule of Civil Procedure 1.330(a)(3)(B) does too, and it adds a witness who is out of state. LoBue shows the cost of that fallback: a deposition taken for discovery may leave out what the jury most needs to hear.

Testimony by video is a third route, and here the systems part. Florida Rule of General Practice and Judicial Administration 2.530 lets a judge permit it on a written motion showing good cause, even over an objection. Federal Rule of Civil Procedure 43(a) permits it only for good cause in compelling circumstances, with appropriate safeguards.

The exhibit and its foundation

Every exhibit has to be what its offering party says it is before a jury can rely on it. That requirement is authentication, and the standard is nearly the same in both systems. Section 90.901, Florida Statutes, and Federal Rule of Evidence 901 (opens in a new tab) ask for evidence sufficient to support a finding that the item is what its proponent claims. The usual route is a witness with knowledge, someone who can say the photograph shows the intersection or the letter is the one the witness signed.

A few items skip the witness. A certified copy of a public record authenticates itself under section 90.902 and Federal Rule of Evidence 902. Both also accept a business record with a custodian’s certification in place of live testimony, under section 90.902(11) and Rule 902(11), if the offering party gives the other side written notice in advance.

Dawn Cirillo’s case shows what happens when the wrong person carries an exhibit. She had been hurt in a car accident, and the defense hired a private investigator, Frank Funke, whose employee followed her for sixteen hours over two days with a video camera. The employee edited the tapes down to twenty or twenty-five minutes for trial. The defense offered the video through Funke, who had not filmed it. Ms. Cirillo’s lawyers objected that no one could be cross-examined about what the camera had left out, and the trial court admitted the tape anyway.

In Cirillo v. Davis, 732 So. 2d 387 (Fla. 4th DCA 1999) (opens in a new tab), the Fourth District held that admitting it was error. Surveillance video is made to impeach a party, the court reasoned, and a camera can be switched on and off and its tapes edited. So the person who ran the camera should face cross-examination under oath. Neither photographs nor videotapes appear on the self-authenticating list in section 90.902. The Cirillos still lost the appeal, because the record they brought up did not show that the error hurt them.

The defense’s pretrial statement had named its witness only as an agent or employee of Funke’s, and at trial it called a witness who could not lay the foundation. A witness list does its job when it names the person who can answer for each exhibit.

Authentication settles only what the item is. A genuine document can still be kept out as hearsay or under another rule, so the foundation is where an exhibit’s path to the jury begins, not where it ends.

What the public file shows

Once an exhibit is admitted, it joins the court’s record, and that record is open. Florida Rule of General Practice and Judicial Administration 2.420 gives the public access to judicial branch records except as the rule provides, and it counts documentary exhibits in the clerk’s custody as court records. In the Middle District, Local Rule 3.07 has the clerk enter each admitted documentary, audio, and video exhibit into the electronic record. A medical chart or a trade secret that goes into evidence without a ruling on confidentiality can end up where anyone can read it.

Florida’s rule lists the grounds a court may use to make a record confidential, among them protecting trade secrets and avoiding substantial injury to innocent third parties. The order can be no broader than necessary, and the court may enter it only when no less restrictive measure will work. The request is a written motion to determine confidentiality, with a certification signed by the party or the party’s lawyer that it is made in good faith. At trial, when there was no time for the written motion, the rule allows an oral one on a showing of good cause. The oral motion must be put in writing and filed within 5 days, and until the court rules, the information must be handled so the public cannot see it.

The Middle District starts from the same place. Under Local Rule 1.11, sealing an item used to resolve a claim or defense takes a reason compelling enough to overcome the presumption of public access. A confidentiality agreement, a protective order, or a stipulation does not authorize sealing. The motion must show that filing the item is necessary, that sealing it is necessary, and that redaction or a pseudonym will not do. That last showing points to work a paralegal can do: finding the pages that carry sensitive information and preparing a redacted copy, so the lawyer can decide whether redaction is enough.

Whose call it is

Much of a trial day is logistics, and logistics can be a paralegal’s: arranging service of a subpoena, filing the proof of service, labeling exhibits, booking the technology test, preparing a redacted copy. Chapter 10 of the Rules Regulating The Florida Bar (opens in a new tab) describes a paralegal as someone who does specifically delegated substantive legal work for which the supervising lawyer is responsible. Rule 4-5.3 requires the lawyer to review that work.

The calls are the lawyer’s. Asking the judge to wait for a witness, as Ms. LoBue’s lawyer did, is a request made to the court on the client’s behalf. Arguing an objection and deciding whether to move to seal are the same kind of call. Rule 2.420 even assigns the good-faith certification on a confidentiality motion to the party or the party’s lawyer. The Middle District writes one of these lines into its rules: a lawyer seeking a trial continuance must certify that the client consents. A nonlawyer who takes those steps alone risks the unauthorized practice of law. Routing them to the supervising attorney before anyone acts is escalation, and in the drill it is the [ATTY] mark.

Six problems wait in the Trial-Readiness Drill in the activity, alternating between the Volusia County courthouse and the federal courthouse in Orlando. Name the court before you name the rule, and mark each step that calls for judgment rather than logistics. When the Fourth District explained why Ms. LoBue deserved a new trial, its first reason was that her lawyer had done all the law allowed to bring the doctor in. The subpoena had been served before the trial began.