Business Law 101 / Trial Preparation

By Albert L. Kelley, Esq.

Everyone handles trial preparation differently, though some things must be done. If you have any witnesses that you want to testify at the trial, you should subpoena them. This is done for a few reasons. First, a subpoena will give the witness a document that reminds them when and where the trial is. Second, it gives the witness a court order they can show to their employer to get time off work. Third, and probably most important, it forces the witness to appear at the trial. If a witness tells you they will appear at trial without a subpoena and they do not appear, the Court will require you to proceed without the witness. If, however, you give the witness a subpoena, and they fail to appear at the trial, the Court can reschedule the trial and sanction the witness for failing to appear. Witness subpoenas are issued by the Clerk of the Court. To get them, provide the name and address of the witness to the clerk. They will prepare the subpoena (there may be a slight cost). The subpoena can be served on the witness by anyone over the age of 18 who is not a party to the lawsuit.

You also need to prepare all of your evidence. Knowing what evidence you need is crucial. Without the necessary evidence, you cannot prove your case; with too much evidence, you make the case confused.

If your case is based on a written lease, you MUST have a copy. While the original is not required, it must be a signed copy, in fact, it needs to be signed by both parties. If only one side has signed it, it is not a written contract, just written evidence of a verbal contract. If you only have an unsigned copy, it is not admissible because you cannot prove that the opposing party had agreed to those specific terms.

If the defense is based on payment of rent, copies of cancelled checks should be provided. Do not rely on witnesses, unless the witness watched you hand the rent to the Landlord.

Similarly, police reports are not admissible. All police reports are hearsay. A police report is based upon statements made to the police officer. Unless the officer actually sees an incident, he is merely reporting what other people have told him.

Photographs are allowed, so long as they have not been modified or altered.   There must be testimony that the picture accurately reflects the subject of the photo.

Letters and affidavits, even if notarized, are not admissible. Notarization does not make a letter valid; it just certifies the existence of the person who signed it.   If the person is not there, they cannot be cross-examined and therefore that evidence is not allowed.

It also is a good strategy to write out all of the questions you need to ask and points you need to make. This will help prevent forgetfulness that can occur under the stress of the trial. A good way to do this is to start by listing what you MUST prove (Was there a contract? Was it signed? What are the terms? What was or was not performed? Etc.). Every cause of action in Florida has specific elements that must be proven in order for the Plaintiff to prevail. You need to know what these elements are. Then make sure your questions establish every point you need to make to establish those elements. Details are important. This is not a situation where you should try to “wing it”. If you do not prove all of the necessary elements, you will not win.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” “Basics of Florida’s Small Claims Court” and “Basics of Florida’s Landlord-Tenant Law” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.