Author Topic: Writ of Certiorari (Crump Deposition)  (Read 45805 times)

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Offline cboldt

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Re: Writ of Certiorari (Crump Deposition)
« Reply #165 on: May 06, 2013, 08:41:41 AM »
I wonder if the defense motion for more time might also include as justification the fact that all evidentiary motions in the trial court are supposed to be filed by the end of this coming week. I'm not sure why the defense couldn't have filed the motion earlier in the week; though perhaps it will be more apparent once we can read it.

No justification is provided.  O'Mara lays out the schedule as directed by the DCA, and asks for until Thursday the 9th to file a reply.  He certifies that there is no objection from the respondant, and says that there would be no untoward delay, and no other party would be affected.  He makes no reference to Crump's filing.  The date he is asking for is 3 days late from the original schedule (taking the state's actual filing date), and although he doesn't spell it out, is one day later that from the original schedule if the state had taken 20 days.

Offline MJW

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Re: Writ of Certiorari (Crump Deposition)
« Reply #166 on: May 06, 2013, 11:37:35 AM »
The date he is asking for is 3 days late from the original schedule (taking the state's actual filing date), and although he doesn't spell it out, is one day later that from the original schedule if the state had taken 20 days.

It's also -- perhaps coincidentally, perhaps not -- 10 days after Crump filed. Also, if the State had filed on the final day, it would have been on the day Crump filed, since the 20th day was a Sunday.

Offline FromBelow

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Re: Writ of Certiorari (Crump Deposition)
« Reply #167 on: May 06, 2013, 01:52:44 PM »
ORDERS FROM THE 5TH DCA

Benjamin Crump's Motin for Leave to File Response, filed April 29, is granted.
Petitioner's Motion for Extension of Time, filed May 3, is granted.

http://gzlegalcase.com/index.php/court-documents/161-orders-from-the-5th-dca

Offline MJW

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Re: Writ of Certiorari (Crump Deposition)
« Reply #168 on: May 07, 2013, 01:37:03 AM »
After thinking about it a little more, I've changed my opinion that the current law in the 5th district favors the DCA dismissing the petition writ of certiorari. I now think it marginally favors considering the merits. The most significant case is still Bill Kasper Const. Co., Inc. v. Morrison, 93 So. 3d 1061 (Fla. 5th DCA 2012).  There's an important, but somewhat subtle, difference between the issue in Bill Kasper Const. and the issue in the Zimmerman case that I think distinguishes them. In Bill Kasper Const., the trial court excluded an expert witness. In dismissing the petition, the DCA said:

Quote
We acknowledge there are three cases from our court that are inconsistent with this case law. First, in Premark International, Inc. v. Pierson, 823 So.2d 859 (Fla. 5th DCA 2002), our court quashed a trial court order striking the defendant's sole expert witness in a personal injury case. Similarly, in Heathrow Master Ass'n v. Zulia, 52 So.3d 811 (Fla. 5th DCA 2011), we quashed a trial court order striking the defendant's expert witness. In so ruling, we reasoned:

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[I]t is difficult to understand how striking the testimony of a material witness can be remedied on appeal since there is no meaningful way to determine, after judgment, what the testimony would have been or how it would have affected the result.

Id. at 813. See also Travelers Indem. Co. v. Hill, 388 So.2d 648, 650 (Fla. 5th DCA 1980) (reasoning similarly).

We find this reasoning unpersuasive. When an order striking testimony is entered, the aggrieved party can proffer the stricken testimony, thereby enabling this court, on final appeal, to determine how the testimony could have affected the result of the trial. Indeed, we have routinely reviewed a trial court's decision to strike an expert witness when considering cases on direct appeal. See Cooper v. Lewis, 719 So.2d 944 (Fla. 5th DCA 1998); Brinkerhoff v. Linkous, 528 So.2d 1318 (Fla. 5th DCA 1988). As such, we recede from Premark, Heathrow, and Travelers to the extent that they are inconsistent with this opinion.

The reason the court gave, that "the aggrieved party can proffer the stricken testimony, thereby enabling this court, on final appeal, to determine how the testimony could have affected the result of the trial," applies when a favorable expert witness is prevented from testifying, but not when an adverse witness like Crump can't be deposed. The state argued that Crump's affidavit can be used to evaluate what his testimony would have been, but I think that's transparently ridiculous. Though the court did recede from several cases including Travelers Indem. Co. v. Hill to the extent they were inconsistent with its opinion, the quoted reasoning shows that the cases are only inconsistent in suggesting that certiorari review is available even when the excluded evidence can be assesed by a post-judgement appellate court.

That the court was not prohibiting certiorari review of all evidentiary issues is apparent from the concurrence. The concurrence does take that position, but it couldn't get enough support from the en banc panel to become the opinion of the court.


Offline MJW

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Re: Writ of Certiorari (Crump Deposition)
« Reply #169 on: May 07, 2013, 02:01:47 AM »
Perhaps also significant, the court says: "We acknowledge there are three cases from our court that are inconsistent with this case law." Unmentioned as inconsistent is the relatively recent Towers v. City of Longwood, 960 So. 2d 845 - Fla: Dist. Court of Appeals, 5th Dist. 2007, where the issue is most similar the the Zimmerman case.

Offline cboldt

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Re: Writ of Certiorari (Crump Deposition)
« Reply #170 on: May 07, 2013, 04:00:09 AM »
After thinking about it a little more, I've changed my opinion that the current law in the 5th district favors the DCA dismissing the petition writ of certiorari. I now think it marginally favors considering the merits. The most significant case is still Bill Kasper Const. Co., Inc. v. Morrison, 93 So. 3d 1061 (Fla. 5th DCA 2012).  There's an important, but somewhat subtle, difference between the issue in Bill Kasper Const. and the issue in the Zimmerman case that I think distinguishes them. ...

The reason the court gave, that "the aggrieved party can proffer the stricken testimony, thereby enabling this court, on final appeal, to determine how the testimony could have affected the result of the trial," applies when a favorable expert witness is prevented from testifying, but not when an adverse witness like Crump can't be deposed.

I remember talking about that a month ago.  The remarks are back at April 4 or so in this thread.  A case that was brought up after that seemed to cut the other way, assuming Crump can be deposed between trials (i.e., assuming the DCA denies this petition as not timely, but were to grant a similar one after a conviction).  And then there was the case that granted an interlocutory petition as to venue for a retrial, citing some "exceptional circumstances" to justify stepping on the trial court's toes.

IMO, the controlling precedents don't facilitate reliable prediction, because there is sufficient variety in the decisions, and an adequate number of legal widgets to justify any outcome.  The DCA will decide the outcome first, then pick the cases that fit the selected outcome.

Offline MJW

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Re: Writ of Certiorari (Crump Deposition)
« Reply #171 on: May 09, 2013, 08:34:34 PM »
As far as I know, the reply that was due today hasn't been posted anywhere. I'm eager to read it. I hope the defense filed on time. I hope it concentrates on distinguishing Bill Kasper Const. from the Crump situation, since that seems to be to be the key issue.


Offline Cylinder

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Re: Writ of Certiorari (Crump Deposition)
« Reply #173 on: May 10, 2013, 07:38:09 AM »
In the reply to the state, O'Mara leans a bit on a new decision - not available at the time of the original petition - from the 4th District: Allstate Ins. Co. v. Total Rehab.

Offline cboldt

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Re: Writ of Certiorari (Crump Deposition)
« Reply #174 on: May 10, 2013, 07:54:05 AM »
In the reply to the state, O'Mara leans a bit on a new decision - not available at the time of the original petition - from the 4th District: Allstate Ins. Co. v. Total Rehab.

Thanks for the link to the Allstate case opinion.  My first thought (and I haven't read Allstate, just going by O'Mra's presentation) is that the legal calculus can be very different, depending on what the trial court did, and which side is asking for relief.  In Allstate, the trial court allowed the deposition, and the attorneys (who were literally opposing counsel in the case at hand) argued that allowing the deposition was a departure from essential requirements of law, resulting in irreparable detriment.  That's just a long-winded way of saying that the Allstate precedent isn't necessarily useful, based the difference between the barrier erected by Nelson, and what the Allstate trial judge allowed.

But, Allstate clearly stands for the proposition that opposing counsel does not have a privilege.

The state's argument in favor of Nelson includes the lines of "assume for argument that Nelson is wrong, that Crump is not opposing counsel, and even if he was, he's waived privilege.  Even if Nelson is wrong on the law, this appeal should wait until the trial has been concluded."  The Allstate case doesn't address that.

Offline cboldt

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Re: Writ of Certiorari (Crump Deposition)
« Reply #175 on: May 10, 2013, 07:56:13 AM »
As far as I know, the reply that was due today hasn't been posted anywhere. I'm eager to read it. I hope the defense filed on time. I hope it concentrates on distinguishing Bill Kasper Const. from the Crump situation, since that seems to be to be the key issue.

Kasper makes no appearance.  Maybe is a ghost.

Offline Cylinder

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Re: Writ of Certiorari (Crump Deposition)
« Reply #176 on: May 10, 2013, 08:04:21 AM »
The state's argument in favor of Nelson includes the lines of "assume for argument that Nelson is wrong, that Crump is not opposing counsel, and even if he was, he's waived privilege.  Even if Nelson is wrong on the law, this appeal should wait until the trial has been concluded."  The Allstate case doesn't address that.

That's the way I read it as well - Allstate doesn't argue for intervention but it seems on point for the proposition that Nelson's order was error.

Offline cboldt

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Re: Writ of Certiorari (Crump Deposition)
« Reply #177 on: May 10, 2013, 08:11:28 AM »
That's the way I read it as well - Allstate doesn't argue for intervention but it seems on point for the proposition that Nelson's order was error.

Even if Crump was literally opposing counsel, instead of opposed in principle by dint of intending to sue defendant in civil court.

It's interesting to read appellate opinions (Allstate isn't one of these) where trial judge is reversed for failure to make a record, or for failure to make findings as to each element required to support an order.  Nelson may feel that ignoring an argument (waiver) or failing to produce an opinion that supports an order (her March 28 opinion/order) will protect her from making an error; but those deficiencies are error in and of themselves.  Lester made similar errors in order to incarcerate Zimmerman following the PayPal fiasco.

Offline Cylinder

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Re: Writ of Certiorari (Crump Deposition)
« Reply #178 on: May 10, 2013, 08:22:27 AM »
Kind of a marginally on-topic question - is there usually a kind of pecking order between a state's various districts where one may be veiwed as more of a trend-setter than the others or is it usually split down political lines like US District Courts?

Offline cboldt

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Re: Writ of Certiorari (Crump Deposition)
« Reply #179 on: May 10, 2013, 08:40:40 AM »
Kind of a marginally on-topic question - is there usually a kind of pecking order between a state's various districts where one may be veiwed as more of a trend-setter than the others or is it usually split down political lines like US District Courts?

It's inside baseball, but I think most states have a similar dynamic to what one sees in the Federal Circuit Courts.  Some have higher quality jurisprudence; some like to make new law and be socially active, etc.  I don't think there is any formal pecking order, just the same sort of pecking order (trustworthiness vs. need to keep an eye on vs. sycophants vs. mindless drones) that happens in any large, distributed organization.  I have no clue as to the dynamics in Florida's court system, other than the view I obtained of SCOFLA in the Bush v. Gore duel.  I concluded that a majority of the Florida Supreme Court is corrupt and lawless.

 

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