It’s been a few days now since the oral argument was completed in an appeal of one of our foreclosure cases. Legal issues are rarely cut and dry and while this case seemed to be, it invariably was not. Months and months of preparation boiled down into 16 minutes of argument and as the buzz from the excitement wears off, I can begin to get a clearer picture of how I feel about this one.
Of course, initially, my mind repeated an internal loop of things I could have said or done differently. Mentioning the Boultbee case which stands for the proposition that a denial along with raising the specific statute, similar to the specific paragraph in the mortgage, in an affirmative defense, without more, is enough to adequately deny the general allegation that conditions precedent have been met to shift the burden back to the Plaintiff to prove that element of their case, is one example. We did cite that case in our brief but this point is in a footnote. I sure hope the Judges see that. There were others but that was the one that bothered me most. This may or may not have made a difference and second guessing your performance as a lawyer is part of the job. However, overall, I knew the law and was proud of the way things went. I received a number of calls and emails from trial and appellate lawyers whom I respect and admire and the feedback was positive. Especially since appellate law sets precedent, this was reassuring. As much as my focus is on serving my clients, I know that many others can be affected by this ruling.
Taking a further step back, I can’t help but wonder whether or not this case would have even needed to be appealed if it were not a foreclosure case. A few years ago, just before the foreclosure crisis, I was in the middle of a 5-day jury trial. In the case, like in almost all others, the Judge was called upon to rule as to whether or not a document could be admitted into evidence for the jury to consider in its deliberations. It was a small, one of many, physical therapy bill. Rather than seek someone from the physical therapist’s office to admit the bill in a case that involved major surgeries, we sought to admit it through the testimony of a doctor. The doctor knew the bill was fair and accurate, and even knew that the services were ordered, reasonable, and necessary. However, as required by Florida Statutes 90.803(6), he could not testify as to when the bill was made, how it was made, how it was kept, and whether or not it was made by a person with knowledge. We had admitted similar evidence in other cases usually by agreement but this opposing lawyer would not stipulate. Because the doctor couldn’t truthfully testify to the issues or “prongs” required by 90.803(6), the judge properly excluded the bill from coming into evidence. We had our client later testify based on her personal knowledge as to the amount of that bill so no harm was done.
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