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Filing # 130514715 E-Filed 07/13/2021 09:34:12 AM
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA
JOHN HUGHES, III, as Receiver of
FLICKER CONSTRUCTION, INC.,
Plaintiff,
v. CASE NO.: 2019-003916-CA-01
ROMAN FLICKER and MID-CONTINENT
CASUALTY COMPANY,
Defendants.
/
PLAINTIFF’S NOTICE OF FILING AMENDED PROPOSED JURY INSTRUCTIONS
Plaintiff, JOHN HUGHES, III, as Receiver of FLICKER CONSTRUCTION, INC., hereby
gives notice of filing his amended proposed jury instructions.1
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically
filed and furnished by e-mail to Edward T. Sylvester, Edward.Sylvester@lewisbrisbois.com, and
Kevin Vannatta, Kevin.Vannatta@lewisbrisbois.com, Lewis Brisbois Bisgaard & Smith, LLP,
110 S.E. 6th Street, Suite 2600, Fort Lauderdale, FL 33301, on this 13th day of July, 2021.
/s/ Brent Steinberg
BRENT G. STEINBERG
Florida Bar No.: 0085453
SWOPE, RODANTE P.A.
1234 E. 5th Avenue
Tampa, FL 33605
Tel: (813) 273-0017
Fax: (813) 223-3678
Team2eservice@swopelaw.com
Appeals@swopelaw.com
Attorneys for Plaintiff
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Plaintiff may seek to revise his proposed jury instructions after the Court rules on the pending
dispositive motions and motions in limine.
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PRELIMINARY INSTRUCTIONS
1. QUALIFICATIONS INSTRUCTION
DURING JURY SELECTION
2. 201.1 DESCRIPTION OF THE CASE
3. 201.2 INTRODUCTION OF PARTICIPANTS AND THEIR ROLES
4. 201.3 EXPLANATION OF THE VOIR DIRE PROCESS
AFTER JURY SELECTED AND SWORN
5. 202.1 INTRODUCTION
6. 202.2 EXPLANATION OF THE TRIAL PROCEDURE
7. 202.3 NOTE-TAKING BY JURORS
8. 202.4 JUROR QUESTIONS
9. 202.5 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/
INTERPRETATION
SUBSTANTIVE INSTRUCTIONS
10. JUDGMENT
11. STATUS AS RECEIVER
12. SUMMARY OF CLAIMS
13. 401.3 GREATER WEIGHT OF THE EVIDENCE
14. STATUTORY EMPLOYER
15. DUTY TO DEFEND
16. 401.4 NEGLIGENCE
17. 401.12 LEGAL CAUSE
18. 401.21 BURDEN OF PROOF ON INJURY CLAIM
19. 401.22 DEFENSE ISSUES ON INJURY CLAIM
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20. 401.23 BURDEN OF PROOF OF DEFENSE ISSUES ON INJURY CLAIM
21. 501.1 & 501.2 PERSONAL INJURY DAMAGES
22. CONTRACT DAMAGES
23. 601.1 WEIGHING THE EVIDENCE
24. 601.2 BELIEVABILITY OF THE WITNESSES
25. 601.3 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/
INTERPRETATION
26. 601.5 CONCLUDING INSTRUCTION (BEFORE FINAL ARGUMENT)
CLOSING INSTRUCTIONS
27. 700 CLOSING INSTRUCTIONS
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JURY INSTRUCTION NO.1
QUALIFICATIONS INSTRUCTION
Many of you have electronic devices such as cell phones, smartphones, tablets, and laptops.
Even though you have not yet been selected as a juror, there are some strict rules that you must
follow about electronic devices.
When you are called to a courtroom, the judge will give you specific instructions on the
use of electronic devices. These rules are so important that the judge may tell you that you must
turn off your cell phone or other electronic devices completely or that you cannot have your cell
phone or electronic devices in the courtroom. If someone needs to contact you in case of an
emergency, the judge will provide you with a phone number where you can receive messages.
If the trial judge allows you to keep your cell phones, computers, or other electronic
devices, you cannot use them to take photographs, video recordings, or audio recordings of the
proceedings in the courtroom or your fellow jurors. You must not use them to search the Internet
or to find out anything related to any cases in the courthouse.
Why is this restriction imposed? This restriction is imposed because jurors must decide
the case without distraction and only on the evidence presented in the courtroom. I know that, for
some of you, these restrictions affect your normal daily activities and may require a change in the
way you are used to communicating and perhaps even in the way you are used to learning.
If you investigate, research, or make inquiries on your own, the trial judge has no way to
make sure that the information you obtain is proper for the case. The parties likewise have no
opportunity to dispute or challenge the accuracy of what you find. Any independent investigation
by a juror unfairly and improperly prevents the parties from having that opportunity our judicial
system promises.
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Between now and when you have been discharged from jury duty by the judge, you must
not discuss any information about your jury service with anyone, including friends, co-workers,
and family members. You may tell those who need to know where you are that you have been
called for jury duty. If you are picked for a jury, you may tell people that you have been picked for
a jury and how long the case may take. However, you must not give anyone any information about
the case itself or the people involved in the case. You must also warn people not to try to say
anything to you or write to you about your jury service or the case. This includes face-to-face,
phone or computer communications.
I want to stress that you must not use electronic devices or computers to talk about this
case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat
room, or any other means at all. Do not send or accept any messages, including e-mail and text
messages, about your jury service. You must not disclose your thoughts about your jury service or
ask for advice on how to decide any case.
The judge will tell you when you are released from this instruction. Remember, these rules
are designed to guarantee a fair trial. It is important that you understand the rules as well as the
impact on our system of justice if you fail to follow them. If it is determined that any one of you
has violated this rule, and conducted any type of independent research or investigation, it may
result in a mistrial. A mistrial would require the case to be tried again at great expense to the
parties and the judicial system. The judge may also impose a penalty upon any juror who violates
this instruction. All of us are depending on you to follow these rules, so that there will be a fair
and lawful resolution of every case.
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JURY INSTRUCTION NO.2
201.1 DESCRIPTION OF THE CASE
Welcome. I will now administer your oath: Do you solemnly swear or affirm that you
will answer truthfully all questions asked of you as prospective jurors?
Now that you have been sworn, I’d like to give you an idea about what we are here to do.
This is a civil trial. A civil trial is different from a criminal case, where a defendant is
charged by the state prosecutor with committing a crime. The subject of a civil trial is a
disagreement between people or companies, where the claims of one or more of these parties have
been brought to court to be resolved. It is called “a trial of a lawsuit.”
The Plaintiff is John Hughes, III, who is serving as the Receiver of Flicker Construction,
Inc. The Plaintiff is bringing Flicker Construction’s claims against its insurance company,
Defendant, Mid-Continent Casualty Company, Inc. (“MCC”).
Flicker Construction was sued by Manuel Perea, who was injured on a jobsite on
September 6, 2010. MCC was required to defend Flicker Construction from that lawsuit but did
not do so. The jury returned a verdict in favor of Mr. Perea, and final judgments were entered
against Flicker Construction totaling $641,258.44, plus interest.
MCC claims there is no coverage under its policy for the judgments against Flicker
Construction because Flicker Construction was a statutory employer of Manuel Perea at the time
he was injured. Plaintiff denies that claim.
Plaintiff claims MCC breached its duty to defend Flicker Construction from the lawsuit
brought by Manuel Perea, and that had MCC properly defended Flicker Construction, the final
judgments against it would have been lower or not entered at all. MCC denies those claims.
The principal witnesses who may testify in this case are:
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John Hughes, III, attorney at McLuskey, McDonald & Hughes, P.A.
Michael Brader, as Corporate Representative of Mid-Continent Casualty Company
Roman Flicker of Flicker Construction, Inc.
Jose Raphael Jimenez of Century Wide Remodeling, Inc.
Moises Tacle of CV-CHES Corp., d/b/a Kosta Seafood & More…
Karina Baquerizo of CV-CHES Corp., d/b/a Kosta Seafood & More…
Manuel Perea
Joshua Diamond, attorney at Florida Insurance Claims Attorney Advocates, P.A.
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JURY INSTRUCTION NO.3
201.2 INTRODUCTION OF PARTICIPANTS AND THEIR ROLES
Who are the people here and what do they do?
Judge/Court: I am the Judge. You may hear people occasionally refer to me as “The
Court.” That is the formal name for my role. My job is to maintain order and decide how to apply
the rules of the law to the trial. I will also explain various rules to you that you will need to know
in order to do your job as the jury. It is my job to remain neutral on the issues of this lawsuit.
Parties: A party who files a lawsuit is called the Plaintiff. A party that is sued is called the
Defendant.
Attorneys: The attorneys have the job of representing their clients. That means they speak
for their client here at the trial. They have taken oaths as attorneys to do their best and to follow
the rules for their profession.
Plaintiff’s Counsel: The attorneys on this side of the courtroom, Brandon Cathey and
Brent Steinberg, represent the Plaintiff, John Hughes, III, as receiver of Flicker Construction, Inc.,
and are the people who filed the lawsuit here at the courthouse. Their job is to present their client’s
side of things to you. They and their client will be referred to most of the time as “the plaintiff.”
Mr. Cathey, will you please introduce yourself and the people sitting at the table with you?
Defendant’s Counsel: The attorney on this side of the courtroom, Ed Sylvester, represents
the Defendant, Mid-Continent Casualty Insurance Company, who has been sued. Their job is to
present their client’s side of things to you. They and their client will usually be referred to here as
“the defendant.” Mr. Sylvester, will you please introduce yourself and the people sitting at the
table with you?
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Court Clerk: This person sitting in front of me, (name), is the court clerk. [He] [She] is
here to assist me with some of the mechanics of the trial process, including the numbering and
collection of the exhibits that are introduced in the course of the trial.
Court Reporter: The person sitting at the stenographic machine, (name), is the court
reporter. [His] [Her] job is to keep an accurate legal record of everything we say and do during
this trial.
Bailiff: The person over there, (name), is the bailiff. [His] [Her] job is to maintain order
and security in the courtroom. The bailiff is also my representative to the jury. Anything you need
or any problems that come up for you during the course of the trial should be brought to [him]
[her]. However, the bailiff cannot answer any of your questions about the case. Only I can do that.
Jury: Last, but not least, is the jury, which we will begin to select in a few moments from
among all of you. The jury’s job will be to decide what the facts are and what the facts mean.
Jurors should be as neutral as possible at this point and have no fixed opinion about the lawsuit.
In order to have a fair and lawful trial, there are rules that all jurors must follow. A basic
rule is that jurors must decide the case only on the evidence presented in the courtroom. You must
not communicate with anyone, including friends and family members, about this case, the people
and places involved, or your jury service. You must not disclose your thoughts about this case or
ask for advice on how to decide this case.
I want to stress that this rule means you must not use electronic devices or computers to
communicate about this case, including tweeting, texting, blogging, e-mailing, posting information
on a website or chat room, or any other means at all. Do not send or accept any messages to or
from anyone about this case or your jury service.
You must not do any research or look up words, names, maps, or anything else that may
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have anything to do with this case. This includes reading newspapers, watching television or using
a computer, cell phone, the Internet, any electronic device, or any other means at all, to get
information related to this case or the people and places involved in this case. This applies whether
you are in the courthouse, at home, or anywhere else.
Many of you may have cell phones, tablets, laptops, or other electronic devices with you
here in the courtroom.
All cell phones, computers, tablets, or other types of electronic devices must be turned off
while you are in the courtroom. Turned off means that the phone or other electronic device is
actually off and not in a silent or vibrating mode. You may use these devices during recesses, but
even then you may not use your cell phone or electronic device to find out any information about
the case or communicate with anyone about the case or the people involved in the case. Do not
take photographs, video recordings, or audio recordings of the proceedings or of your fellow jurors.
After each recess, please double check to make sure your cell phone or electronic device is turned
off. At the end of the case, while you are deliberating, you must not communicate with anyone
outside the jury room. You cannot have in the jury room any cell phones, computers, or other
electronic devices. If someone needs to contact you in an emergency, the court can receive
messages and deliver them to you without delay. A contact phone number will be provided to you.
What are the reasons for these rules? These rules are imposed because jurors must decide
the case without distraction and only on the evidence presented in the courtroom. If you
investigate, research, or make inquiries on your own outside of the courtroom, the trial judge has
no way to make sure that the information you obtain is proper for the case. The parties likewise
have no opportunity to dispute or challenge the accuracy of what you find. That is contrary to our
judicial system, which assures every party the right to ask questions about and challenge the
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evidence being considered against it and to present argument with respect to that evidence. Any
independent investigation by a juror unfairly and improperly prevents the parties from having that
opportunity our judicial system promises.
Any juror who violates these restrictions jeopardizes the fairness of these proceedings, and
a mistrial could result that would require the entire trial process to start over. A mistrial is a
tremendous expense and inconvenience to the parties, the court, and the taxpayers. If you violate
these rules, you may be held in contempt of court, and face sanctions, such as serving time in jail,
paying a fine or both.
All of your communications with courtroom personnel, or me, will be part of the record of
these proceedings. That means those communications shall either be made in open court with the
court reporter present or, if they are in writing, the writing will be filed with the court clerk. This
means, if you are outside the courtroom, any communication with me must be in writing, unsigned,
and handed directly to the bailiff. Do not share the content of the writing with anyone, including
other jurors. I have instructed the courtroom personnel that any communications you have with
them outside of my presence must be reported to me, and I will tell the parties and their attorneys
about any communication from you that I believe may be of interest to the parties and their
attorneys.
However, you may communicate directly with courtroom personnel about matters
concerning your comfort and safety, such as juror parking, location of break areas, how and when
to assemble for duty, how to dress, and what personal items can be brought into the courthouse or
jury room.
If you become aware of any violation of these instructions or any other instruction I give
in this case, you must tell me by giving a note to the bailiff.
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JURY INSTRUCTION NO.4
201.3 EXPLANATION OF THE VOIR DIRE PROCESS
Voir Dire:
The last thing I want to do, before we begin to select the jury, is to explain to you how the
selection process works.
Questions/Challenges: This is the part of the case where the parties and their lawyers have
the opportunity to get to know a littlebit about you, in order to help them come to their own
conclusions about your ability to be fair and impartial, so they can decide who they think should
be the jurors in this case.
How we go about that is as follows: First, I’ll ask some general questions of you. Then,
each of the lawyers will have more specific questions that they will ask of you. After they have
asked all of their questions, I will meet with them and they will tell me their choices for jurors.
Each side can ask that I exclude a person from serving on a jury if they can give me a reason to
believe that he or she might be unable to be fair and impartial. That is what is called a challenge
for cause. The lawyers also have a certain number of what are called peremptory challenges, by
which they may exclude a person from the jury without giving a reason. By this process of
elimination, the remaining persons are selected as the jury. It may take more than one conference
among the parties, their attorneys, and me before the final selections are made.
Purpose of Questioning: The questions that you will be asked during this process are not
intended to embarrass you or unnecessarily pry into your personal affairs, but it is important that
the parties and their attorneys know enough about you to make this important decision. If a
question is asked that you would prefer not to answer in front of the whole courtroom, just let me
know and you can come up here and give your answer just in front of the attorneys and me. If you
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have a question of either the attorneys or me, don’t hesitate to let me know.
Response to Questioning: There are no right or wrong answers to the questions that will
be asked of you. The only thing that I ask is that you answer the questions as frankly and as honestly
and as completely as you can. You [will take] [have taken] an oath to answer all questions
truthfully and completely and you must do so. Remaining silent when you have information you
should disclose is a violation of that oath as well. If a juror violates this oath, it not only may result
in having to try the case all over again but also can result in civil and criminal penalties against a
juror personally. So, again, itis very important that you be as honest and complete with your
answers as you possibly can. If you don’t understand the question, please raise your hand and ask
for an explanation or clarification.
In the process of selecting the jury, some of the lawyers’ questions may be meant to help
them anticipate if your beliefs, experiences, or attitudes might make it difficult for you to apply
the rules of law. Jurors take an oath to follow the law. After the jury is chosen and sworn in, I will
instruct the jury on the rules they must follow in deciding this case. It is important for you to
remember that it will not be the jury’s job to decide what the law ought to be Rather, the jury is to
determine what the facts are, then apply the law to those facts, using the court’s instructions on the
rules of law to apply—which will be fully given to the jury at the appropriate time.
In sum, this is a process to assist the parties and their attorneys to select a fair and impartial
jury. All of the questions they ask you are for this purpose. If, for any reason, you do not think you
can be a fair and impartial juror, you must tell us.
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JURY INSTRUCTION NO.5
202.1 INTRODUCTION
Administer Oath: Do you solemnly swear or affirm that you will well and truly try this
case between the Plaintiff and Defendant, and a true verdict render according to the law and
evidence?
You have now taken an oath to serve as jurors in this trial. Before we begin, I am going to
tell you about the rules of law that apply to this case and let you know what you can expect as the
trial proceeds.
It is my intention to give you most of the rules of law but it might be that I will not know for
sure all of the law that will apply in this case until all of the evidence is presented. However, I can
anticipate most of the law and give it to you at the beginning of the trial so that you will better
understand what to be looking for while the evidence is presented. If I later decide that different
or additional law applies to the case, I will tell you. In any event, at the end of the evidence I will
give you the final instructions on which you must base your verdict. At that time, you will have a
complete written set of the instructions so you do not have to memorize what I am about to tell
you.
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JURY INSTRUCTION NO.6
202.2 EXPLANATION OF THE TRIAL PROCEDURE
Now that you have heard the law, I want to let you know what you can expect as the trial
proceeds.
Opening Statements: In a few moments, the attorneys will each have a chance to make
what are called opening statements. In an opening statement, an attorney is allowed to give you
his views about what the evidence will be in the trial and what you are likely to see and hear in the
testimony.
Evidentiary Phase: After the attorneys’ opening statements the plaintiffs will bring their
witnesses and evidence to you.
Evidence: Evidence is the information that the law allows you to see or hear in deciding
this case. Evidence includes the testimony of the witnesses, documents, and anything else that I
instruct you to consider.
Witnesses: A witness is a person who takes an oath to tell the truth and then answers
attorneys’ questions for the jury. The answering of attorneys’ questions by witnesses is called
“giving testimony.” Testimony means statements that are made when someone has sworn an oath
to tell the truth.
The plaintiff’s lawyer will normally ask a witness the questions first. That is called direct
examination. Then the defense lawyer may ask the same witness additional questions about
whatever the witness has testified to. That is called cross-examination. Certain documents or other
evidence may also be shown to you during direct or cross-examination. After the plaintiff’s
witnesses have testified, the Defendants will have the opportunity to put witnesses on the stand
and go through the same process. Then the plaintiff’s lawyer gets to do cross-examination. The
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process is designed to be fair to both sides.
It is important that you remember that testimony comes from witnesses. The attorneys do
not give testimony and they are not themselves witnesses.
Objections: Sometimes the attorneys will disagree about the rules for trial procedure when
a question is asked of a witness. When that happens, one of the lawyers may make what is called
an “objection.” The rules for a trial can be complicated, and there are many reasons for attorneys
to object. You should simply wait for me to decide how to proceed. If I say that an objection is
“sustained,” that means the witness may not answer the question. If I say that the objection is
“overruled,” that means the witness may answer the question.
When there is an objection and I make a decision, you must not assume from that decision
that I have any particular opinion other than that the rules for conducting a trial are being correctly
followed. If I say a question may not be asked or answered, you must not try to guess what the
answer would have been. That is against the rules, too.
Side Bar Conferences: Sometimes I will need to speak to the attorneys about legal
elements of the case that are not appropriate for the jury to hear. The attorneys and I will try to
have as few of these conferences as possible while you are giving us your valuable time in the
courtroom. But, if we do have to have such a conference during testimony, we will try to hold the
conference at the side of my desk so that we do not have to take a break and ask you to leave the
courtroom.
Recesses: Breaks in an ongoing trial are usually called “recesses.” During a recess you still
have your duties as a juror and must follow the rules, even while having coffee, at lunch, or at
home.
Instructions Before Closing Arguments: After all the evidence has been presented to
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you, I will instruct you in the law that you must follow. It is important that you remember these
instructions to assist you in evaluating the final attorney presentations, which come next, and, later,
during your deliberations, to help you correctly sort through the evidence to reach your decision.
Closing Arguments: The attorneys will then have the opportunity to make their final
presentations to you, which are called closing arguments.
Final Instructions: After you have heard the closing arguments, I will instruct you further
in the law as well as explain to you the procedures you must follow to decide the case.
Deliberations: After you hear the final jury instructions, you will go to the jury room and
discuss and decide the questions I have put on your verdict form. You will have a copy of the jury
instructions to use during your discussions. The discussions you have and the decisions you make
are usually called “jury deliberations.” Your deliberations are absolutely private and neither I nor
anyone else will be with you in the jury room.
Verdict: When you have finished answering the questions, you will give the verdict form
to the bailiff, and we will all return to the courtroom where your verdict will be read. When that is
completed, you will be released from your assignment as a juror.
What are the rules?
Finally, before we begin the trial, I want to give you just a brief explanation of rules you
must follow as the case proceeds.
Keeping an Open Mind: You must pay close attention to the testimony and other evidence
as it comes into the trial. However, you must avoid forming any final opinion or telling anyone
else your views on the case until you begin your deliberations. This rule requires you to keep an
open mind until you have heard all of the evidence and is designed to prevent you from influencing
how your fellow jurors think until they have heard all of the evidence and had an opportunity to
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form their own opinions. The time and place for coming to your final opinions and speaking about
them with your fellow jurors is during deliberations in the jury room, after all of the evidence has
been presented, closing arguments have been made, and I have instructed you on the law. It is
important that you hear all of the facts and that you hear the law and how to apply it before you
start deciding anything.
Consider Only the Evidence: It is the things you hear and see in this courtroom that matter
in this trial. The law tells us that a juror can consider only the testimony and other evidence that
all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing
anything else is wrong and is against the law. That means that you must not do any work or
investigation of your own about the case. You must not obtain on your own any information about
the case or about anyone involved in the case, from any source whatsoever. This includes reading
newspapers, watching television or using a computer, cell phone, the Internet, any electronic
device, or any other means at all, to get information related to this case or the people and places
involved in this case. This applies whether you are in the courthouse, at home, or anywhere else.
You must not visit places mentioned in the trial or use the internet to look at maps or pictures to
see any place discussed during trial.
Do not provide any information about this case to anyone, including friends or family
members. Do not let anyone, including the closest family members, make comments to you or ask
questions about the trial. Jurors must not have discussions of any sort with friends or family
members about the case or the people and places involved. So, do not let even the closest family
members make comments to you or ask questions about the trial. In this age of electronic
communication, I want to stress again that just as you must not talk about this case face-to-face,
you must not talk about this case by using an electronic device. You must not use phones,
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computers or other electronic devices to communicate. Do not send or accept any messages related
to this case or your jury service. Do not discuss this case or ask for advice by any means at all,
including posting information on an Internet website, chat room or blog.
No Mid-Trial Discussions: When we are in a recess, do not discuss anything about the
trial or the case with each other or with anyone else. If attorneys approach you, don’t speak with
them. The law says they are to avoid contact with you. If an attorney will not look at you or speak
to you, do not be offended or form a conclusion about that behavior. The attorney is not supposed
to interact with jurors outside of the courtroom and is only following the rules. The attorney is not
being impolite. If an attorney or anyone else does try to speak with you or says something about
the case in your presence, please inform the bailiff immediately.
Only the Jury Decides: Only you get to deliberate and answer the verdict questions at the
end of the trial. I will not intrude into your deliberations at all. I am required to be neutral. You
should not assume that I prefer one decision over another. You should not try to guess what my
opinion is about any part of the case. It would be wrong for you to conclude that anything I say or
do means that I am for one side or another in the trial. Discussing and deciding the facts is your
job alone.
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JURY INSTRUCTION NO.7
202.3 NOTE-TAKING BY JURORS
If you would like to take notes during the trial, you may do so. On the other hand, of course,
you are not required to take notes if you do not want to. That will be left up to you individually.
You will be provided with a note pad and a pen for use if you wish to take notes. Any notes
that you take will be for your personal use. However, you should not take them with you from the
courtroom. During recesses, the bailiff will take possession of your notes and will return them to
you when we reconvene. After you have completed your deliberations, the bailiff will deliver your
notes to me. They will be destroyed. No one will ever read your notes.
If you take notes, do not get so involved in note-taking that you become distracted from
the proceedings. Your notes should be used only as aids to your memory.
Whether or not you take notes, you should rely on your memory of the evidence and you
should not be unduly influenced by the notes of other jurors. Notes are not entitled to any greater
weight than each juror’s memory of the evidence.
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JURY INSTRUCTION NO.8
202.4 JUROR QUESTIONS
Questions for the court or courtroom personnel:
During the trial, you may have a question about these proceedings. If so, please write it
down and hand it to the bailiff, who will then hand it to me. I will review your question with the
parties and their attorneys before responding.
Questions for witnesses:
You also may have a question you think should be asked of a witness. If so, there is a way
for you to request that I ask the witness a question. After all the attorneys have completed their
questioning of the witness, you should raise your hand if you have a question. I will then give you
sufficient time to write the question on a piece of paper, fold it, and give it to the bailiff, who will
pass it to me. Do not put your name on the question, show it to anyone or discuss it with anyone.
I will then review the question with the attorneys. Under our law, only certain evidence
may be considered by a jury in determining a verdict. You are bound by the same rules of evidence
that control the attorneys’ questions. If I decide that the question may not be asked under our rules
of evidence, I will tell you. Otherwise, I will direct the question to the witness. The attorneys may
then ask follow-up questions if they wish. If there are additional questions from jurors, we will
follow the same procedure again.
By providing this procedure, I do not mean to suggest that you must or should submit
written questions for witnesses. In most cases, the lawyers will have asked the necessary questions.
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JURY INSTRUCTION NO.9
202.5 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/
INTERPRETATION
A witness may testify in Spanish which will be interpreted in English.
The evidence you are to consider is only that provided through the official court
interpreters. Although some of you may know Spanish, it is important that all jurors consider the
same evidence. Therefore, you must accept the English interpretation. You must disregard any
different meaning.
If, however, during the testimony there is a question as to the accuracy of the English
interpretation, you should bring this matter to my attention immediately by raising your hand. You
should not ask your question or make any comment about the interpretation in the presence of the
other jurors, or otherwise share your question or concern with any of them. I will take steps to see
if your question can be answered and any discrepancy resolved. If, however, after such efforts a
discrepancy remains, I emphasize that you must rely only upon the official English interpretation
as provided by the court interpreter and disregard any other contrary interpretation.
22
JURY INSTRUCTION NO.10
JUDGMENT
A party suffers a legal injury as the result of an adverse judgment, regardless of whether
the party has paid, or has the ability to pay, any money toward the judgment.2
2
See Am. Fire & Cas. Co. v. Davis, 146 So. 2d 615, 619 (Fla. 1st DCA 1962) (holding that “unpaid
judgments” are “injuries in themselves, their overburden measuring the pecuniary damages” and
that “prior satisfaction of the excess judgment is not a prerequisite to bringing an action against
one’s insurer for damages due to negligence or bad faith in failing to settle a claim within the
policy limits.”); see also Camp v. St. Paul Fire & Marine Ins. Co., 616 So. 2d 12, 15 (Fla. 1993)
(holding a debtor’s liability insurer may be held liable for the entire excess judgment – even if the
insured debtor is bankrupt and has been discharged from any personal liability – because the estate
is harmed by the debt); May v. Illinois Nat. Ins. Co., 190 F.3d 1200, 1202 (11th Cir.
1999), certified question answered, 771 So. 2d 1143 (Fla. 2000) (holding that a decedent’s liability
insurer may be liable for the entire excess judgment owed by the estate even if the estate cannot
pay it, because “[t]he amount the insured is obligated to pay constitutes the extent of damages”).
23
Preview
Filing # 130514715 E-Filed 07/13/2021 09:34:12 AM IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI- DADE COUNTY, FLORIDA JOHN HUGHES, III, as Receiver of FLICKER CONSTRUCTION, INC., Plaintiff, v. CASE NO.: 2019-003916-CA-01 ROMAN FLICKER and MID-CONTINENT CASUALTY COMPANY, Defendants. / PLAINTIFF’S NOTICE OF FILING AMENDED PROPOSED JURY INSTRUCTIONS Plaintiff, JOHN HUGHES, III, as Receiver of FLICKER CONSTRUCTION, INC., hereby gives notice of filing his amended proposed jury instructions.1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically filed and furnished by e-mail to Edward T. Sylvester, Edward.Sylvester@lewisbrisbois.com, and Kevin Vannatta, Kevin.Vannatta@lewisbrisbois.com, Lewis Brisbois Bisgaard & Smith, LLP, 110 S.E. 6th Street, Suite 2600, Fort Lauderdale, FL 33301, on this 13th day of July, 2021. /s/ Brent Steinberg BRENT G. STEINBERG Florida Bar No.: 0085453 SWOPE, RODANTE P.A. 1234 E. 5th Avenue Tampa, FL 33605 Tel: (813) 273-0017 Fax: (813) 223-3678 Team2eservice@swopelaw.com Appeals@swopelaw.com Attorneys for Plaintiff 1 Plaintiff may seek to revise his proposed jury instructions after the Court rules on the pending dispositive motions and motions in limine. 1 PRELIMINARY INSTRUCTIONS 1. QUALIFICATIONS INSTRUCTION DURING JURY SELECTION 2. 201.1 DESCRIPTION OF THE CASE 3. 201.2 INTRODUCTION OF PARTICIPANTS AND THEIR ROLES 4. 201.3 EXPLANATION OF THE VOIR DIRE PROCESS AFTER JURY SELECTED AND SWORN 5. 202.1 INTRODUCTION 6. 202.2 EXPLANATION OF THE TRIAL PROCEDURE 7. 202.3 NOTE-TAKING BY JURORS 8. 202.4 JUROR QUESTIONS 9. 202.5 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/ INTERPRETATION SUBSTANTIVE INSTRUCTIONS 10. JUDGMENT 11. STATUS AS RECEIVER 12. SUMMARY OF CLAIMS 13. 401.3 GREATER WEIGHT OF THE EVIDENCE 14. STATUTORY EMPLOYER 15. DUTY TO DEFEND 16. 401.4 NEGLIGENCE 17. 401.12 LEGAL CAUSE 18. 401.21 BURDEN OF PROOF ON INJURY CLAIM 19. 401.22 DEFENSE ISSUES ON INJURY CLAIM 2 20. 401.23 BURDEN OF PROOF OF DEFENSE ISSUES ON INJURY CLAIM 21. 501.1 & 501.2 PERSONAL INJURY DAMAGES 22. CONTRACT DAMAGES 23. 601.1 WEIGHING THE EVIDENCE 24. 601.2 BELIEVABILITY OF THE WITNESSES 25. 601.3 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/ INTERPRETATION 26. 601.5 CONCLUDING INSTRUCTION (BEFORE FINAL ARGUMENT) CLOSING INSTRUCTIONS 27. 700 CLOSING INSTRUCTIONS 3 JURY INSTRUCTION NO.1 QUALIFICATIONS INSTRUCTION Many of you have electronic devices such as cell phones, smartphones, tablets, and laptops. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about electronic devices. When you are called to a courtroom, the judge will give you specific instructions on the use of electronic devices. These rules are so important that the judge may tell you that you must turn off your cell phone or other electronic devices completely or that you cannot have your cell phone or electronic devices in the courtroom. If someone needs to contact you in case of an emergency, the judge will provide you with a phone number where you can receive messages. If the trial judge allows you to keep your cell phones, computers, or other electronic devices, you cannot use them to take photographs, video recordings, or audio recordings of the proceedings in the courtroom or your fellow jurors. You must not use them to search the Internet or to find out anything related to any cases in the courthouse. Why is this restriction imposed? This restriction is imposed because jurors must decide the case without distraction and only on the evidence presented in the courtroom. I know that, for some of you, these restrictions affect your normal daily activities and may require a change in the way you are used to communicating and perhaps even in the way you are used to learning. If you investigate, research, or make inquiries on your own, the trial judge has no way to make sure that the information you obtain is proper for the case. The parties likewise have no opportunity to dispute or challenge the accuracy of what you find. Any independent investigation by a juror unfairly and improperly prevents the parties from having that opportunity our judicial system promises. 4 Between now and when you have been discharged from jury duty by the judge, you must not discuss any information about your jury service with anyone, including friends, co-workers, and family members. You may tell those who need to know where you are that you have been called for jury duty. If you are picked for a jury, you may tell people that you have been picked for a jury and how long the case may take. However, you must not give anyone any information about the case itself or the people involved in the case. You must also warn people not to try to say anything to you or write to you about your jury service or the case. This includes face-to-face, phone or computer communications. I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case. The judge will tell you when you are released from this instruction. Remember, these rules are designed to guarantee a fair trial. It is important that you understand the rules as well as the impact on our system of justice if you fail to follow them. If it is determined that any one of you has violated this rule, and conducted any type of independent research or investigation, it may result in a mistrial. A mistrial would require the case to be tried again at great expense to the parties and the judicial system. The judge may also impose a penalty upon any juror who violates this instruction. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution of every case. 5 JURY INSTRUCTION NO.2 201.1 DESCRIPTION OF THE CASE Welcome. I will now administer your oath: Do you solemnly swear or affirm that you will answer truthfully all questions asked of you as prospective jurors? Now that you have been sworn, I’d like to give you an idea about what we are here to do. This is a civil trial. A civil trial is different from a criminal case, where a defendant is charged by the state prosecutor with committing a crime. The subject of a civil trial is a disagreement between people or companies, where the claims of one or more of these parties have been brought to court to be resolved. It is called “a trial of a lawsuit.” The Plaintiff is John Hughes, III, who is serving as the Receiver of Flicker Construction, Inc. The Plaintiff is bringing Flicker Construction’s claims against its insurance company, Defendant, Mid-Continent Casualty Company, Inc. (“MCC”). Flicker Construction was sued by Manuel Perea, who was injured on a jobsite on September 6, 2010. MCC was required to defend Flicker Construction from that lawsuit but did not do so. The jury returned a verdict in favor of Mr. Perea, and final judgments were entered against Flicker Construction totaling $641,258.44, plus interest. MCC claims there is no coverage under its policy for the judgments against Flicker Construction because Flicker Construction was a statutory employer of Manuel Perea at the time he was injured. Plaintiff denies that claim. Plaintiff claims MCC breached its duty to defend Flicker Construction from the lawsuit brought by Manuel Perea, and that had MCC properly defended Flicker Construction, the final judgments against it would have been lower or not entered at all. MCC denies those claims. The principal witnesses who may testify in this case are: 6 John Hughes, III, attorney at McLuskey, McDonald & Hughes, P.A. Michael Brader, as Corporate Representative of Mid-Continent Casualty Company Roman Flicker of Flicker Construction, Inc. Jose Raphael Jimenez of Century Wide Remodeling, Inc. Moises Tacle of CV-CHES Corp., d/b/a Kosta Seafood & More… Karina Baquerizo of CV-CHES Corp., d/b/a Kosta Seafood & More… Manuel Perea Joshua Diamond, attorney at Florida Insurance Claims Attorney Advocates, P.A. 7 JURY INSTRUCTION NO.3 201.2 INTRODUCTION OF PARTICIPANTS AND THEIR ROLES Who are the people here and what do they do? Judge/Court: I am the Judge. You may hear people occasionally refer to me as “The Court.” That is the formal name for my role. My job is to maintain order and decide how to apply the rules of the law to the trial. I will also explain various rules to you that you will need to know in order to do your job as the jury. It is my job to remain neutral on the issues of this lawsuit. Parties: A party who files a lawsuit is called the Plaintiff. A party that is sued is called the Defendant. Attorneys: The attorneys have the job of representing their clients. That means they speak for their client here at the trial. They have taken oaths as attorneys to do their best and to follow the rules for their profession. Plaintiff’s Counsel: The attorneys on this side of the courtroom, Brandon Cathey and Brent Steinberg, represent the Plaintiff, John Hughes, III, as receiver of Flicker Construction, Inc., and are the people who filed the lawsuit here at the courthouse. Their job is to present their client’s side of things to you. They and their client will be referred to most of the time as “the plaintiff.” Mr. Cathey, will you please introduce yourself and the people sitting at the table with you? Defendant’s Counsel: The attorney on this side of the courtroom, Ed Sylvester, represents the Defendant, Mid-Continent Casualty Insurance Company, who has been sued. Their job is to present their client’s side of things to you. They and their client will usually be referred to here as “the defendant.” Mr. Sylvester, will you please introduce yourself and the people sitting at the table with you? 8 Court Clerk: This person sitting in front of me, (name), is the court clerk. [He] [She] is here to assist me with some of the mechanics of the trial process, including the numbering and collection of the exhibits that are introduced in the course of the trial. Court Reporter: The person sitting at the stenographic machine, (name), is the court reporter. [His] [Her] job is to keep an accurate legal record of everything we say and do during this trial. Bailiff: The person over there, (name), is the bailiff. [His] [Her] job is to maintain order and security in the courtroom. The bailiff is also my representative to the jury. Anything you need or any problems that come up for you during the course of the trial should be brought to [him] [her]. However, the bailiff cannot answer any of your questions about the case. Only I can do that. Jury: Last, but not least, is the jury, which we will begin to select in a few moments from among all of you. The jury’s job will be to decide what the facts are and what the facts mean. Jurors should be as neutral as possible at this point and have no fixed opinion about the lawsuit. In order to have a fair and lawful trial, there are rules that all jurors must follow. A basic rule is that jurors must decide the case only on the evidence presented in the courtroom. You must not communicate with anyone, including friends and family members, about this case, the people and places involved, or your jury service. You must not disclose your thoughts about this case or ask for advice on how to decide this case. I want to stress that this rule means you must not use electronic devices or computers to communicate about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages to or from anyone about this case or your jury service. You must not do any research or look up words, names, maps, or anything else that may 9 have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. Many of you may have cell phones, tablets, laptops, or other electronic devices with you here in the courtroom. All cell phones, computers, tablets, or other types of electronic devices must be turned off while you are in the courtroom. Turned off means that the phone or other electronic device is actually off and not in a silent or vibrating mode. You may use these devices during recesses, but even then you may not use your cell phone or electronic device to find out any information about the case or communicate with anyone about the case or the people involved in the case. Do not take photographs, video recordings, or audio recordings of the proceedings or of your fellow jurors. After each recess, please double check to make sure your cell phone or electronic device is turned off. At the end of the case, while you are deliberating, you must not communicate with anyone outside the jury room. You cannot have in the jury room any cell phones, computers, or other electronic devices. If someone needs to contact you in an emergency, the court can receive messages and deliver them to you without delay. A contact phone number will be provided to you. What are the reasons for these rules? These rules are imposed because jurors must decide the case without distraction and only on the evidence presented in the courtroom. If you investigate, research, or make inquiries on your own outside of the courtroom, the trial judge has no way to make sure that the information you obtain is proper for the case. The parties likewise have no opportunity to dispute or challenge the accuracy of what you find. That is contrary to our judicial system, which assures every party the right to ask questions about and challenge the 10 evidence being considered against it and to present argument with respect to that evidence. Any independent investigation by a juror unfairly and improperly prevents the parties from having that opportunity our judicial system promises. Any juror who violates these restrictions jeopardizes the fairness of these proceedings, and a mistrial could result that would require the entire trial process to start over. A mistrial is a tremendous expense and inconvenience to the parties, the court, and the taxpayers. If you violate these rules, you may be held in contempt of court, and face sanctions, such as serving time in jail, paying a fine or both. All of your communications with courtroom personnel, or me, will be part of the record of these proceedings. That means those communications shall either be made in open court with the court reporter present or, if they are in writing, the writing will be filed with the court clerk. This means, if you are outside the courtroom, any communication with me must be in writing, unsigned, and handed directly to the bailiff. Do not share the content of the writing with anyone, including other jurors. I have instructed the courtroom personnel that any communications you have with them outside of my presence must be reported to me, and I will tell the parties and their attorneys about any communication from you that I believe may be of interest to the parties and their attorneys. However, you may communicate directly with courtroom personnel about matters concerning your comfort and safety, such as juror parking, location of break areas, how and when to assemble for duty, how to dress, and what personal items can be brought into the courthouse or jury room. If you become aware of any violation of these instructions or any other instruction I give in this case, you must tell me by giving a note to the bailiff. 11 JURY INSTRUCTION NO.4 201.3 EXPLANATION OF THE VOIR DIRE PROCESS Voir Dire: The last thing I want to do, before we begin to select the jury, is to explain to you how the selection process works. Questions/Challenges: This is the part of the case where the parties and their lawyers have the opportunity to get to know a littlebit about you, in order to help them come to their own conclusions about your ability to be fair and impartial, so they can decide who they think should be the jurors in this case. How we go about that is as follows: First, I’ll ask some general questions of you. Then, each of the lawyers will have more specific questions that they will ask of you. After they have asked all of their questions, I will meet with them and they will tell me their choices for jurors. Each side can ask that I exclude a person from serving on a jury if they can give me a reason to believe that he or she might be unable to be fair and impartial. That is what is called a challenge for cause. The lawyers also have a certain number of what are called peremptory challenges, by which they may exclude a person from the jury without giving a reason. By this process of elimination, the remaining persons are selected as the jury. It may take more than one conference among the parties, their attorneys, and me before the final selections are made. Purpose of Questioning: The questions that you will be asked during this process are not intended to embarrass you or unnecessarily pry into your personal affairs, but it is important that the parties and their attorneys know enough about you to make this important decision. If a question is asked that you would prefer not to answer in front of the whole courtroom, just let me know and you can come up here and give your answer just in front of the attorneys and me. If you 12 have a question of either the attorneys or me, don’t hesitate to let me know. Response to Questioning: There are no right or wrong answers to the questions that will be asked of you. The only thing that I ask is that you answer the questions as frankly and as honestly and as completely as you can. You [will take] [have taken] an oath to answer all questions truthfully and completely and you must do so. Remaining silent when you have information you should disclose is a violation of that oath as well. If a juror violates this oath, it not only may result in having to try the case all over again but also can result in civil and criminal penalties against a juror personally. So, again, itis very important that you be as honest and complete with your answers as you possibly can. If you don’t understand the question, please raise your hand and ask for an explanation or clarification. In the process of selecting the jury, some of the lawyers’ questions may be meant to help them anticipate if your beliefs, experiences, or attitudes might make it difficult for you to apply the rules of law. Jurors take an oath to follow the law. After the jury is chosen and sworn in, I will instruct the jury on the rules they must follow in deciding this case. It is important for you to remember that it will not be the jury’s job to decide what the law ought to be Rather, the jury is to determine what the facts are, then apply the law to those facts, using the court’s instructions on the rules of law to apply—which will be fully given to the jury at the appropriate time. In sum, this is a process to assist the parties and their attorneys to select a fair and impartial jury. All of the questions they ask you are for this purpose. If, for any reason, you do not think you can be a fair and impartial juror, you must tell us. 13 JURY INSTRUCTION NO.5 202.1 INTRODUCTION Administer Oath: Do you solemnly swear or affirm that you will well and truly try this case between the Plaintiff and Defendant, and a true verdict render according to the law and evidence? You have now taken an oath to serve as jurors in this trial. Before we begin, I am going to tell you about the rules of law that apply to this case and let you know what you can expect as the trial proceeds. It is my intention to give you most of the rules of law but it might be that I will not know for sure all of the law that will apply in this case until all of the evidence is presented. However, I can anticipate most of the law and give it to you at the beginning of the trial so that you will better understand what to be looking for while the evidence is presented. If I later decide that different or additional law applies to the case, I will tell you. In any event, at the end of the evidence I will give you the final instructions on which you must base your verdict. At that time, you will have a complete written set of the instructions so you do not have to memorize what I am about to tell you. 14 JURY INSTRUCTION NO.6 202.2 EXPLANATION OF THE TRIAL PROCEDURE Now that you have heard the law, I want to let you know what you can expect as the trial proceeds. Opening Statements: In a few moments, the attorneys will each have a chance to make what are called opening statements. In an opening statement, an attorney is allowed to give you his views about what the evidence will be in the trial and what you are likely to see and hear in the testimony. Evidentiary Phase: After the attorneys’ opening statements the plaintiffs will bring their witnesses and evidence to you. Evidence: Evidence is the information that the law allows you to see or hear in deciding this case. Evidence includes the testimony of the witnesses, documents, and anything else that I instruct you to consider. Witnesses: A witness is a person who takes an oath to tell the truth and then answers attorneys’ questions for the jury. The answering of attorneys’ questions by witnesses is called “giving testimony.” Testimony means statements that are made when someone has sworn an oath to tell the truth. The plaintiff’s lawyer will normally ask a witness the questions first. That is called direct examination. Then the defense lawyer may ask the same witness additional questions about whatever the witness has testified to. That is called cross-examination. Certain documents or other evidence may also be shown to you during direct or cross-examination. After the plaintiff’s witnesses have testified, the Defendants will have the opportunity to put witnesses on the stand and go through the same process. Then the plaintiff’s lawyer gets to do cross-examination. The 15 process is designed to be fair to both sides. It is important that you remember that testimony comes from witnesses. The attorneys do not give testimony and they are not themselves witnesses. Objections: Sometimes the attorneys will disagree about the rules for trial procedure when a question is asked of a witness. When that happens, one of the lawyers may make what is called an “objection.” The rules for a trial can be complicated, and there are many reasons for attorneys to object. You should simply wait for me to decide how to proceed. If I say that an objection is “sustained,” that means the witness may not answer the question. If I say that the objection is “overruled,” that means the witness may answer the question. When there is an objection and I make a decision, you must not assume from that decision that I have any particular opinion other than that the rules for conducting a trial are being correctly followed. If I say a question may not be asked or answered, you must not try to guess what the answer would have been. That is against the rules, too. Side Bar Conferences: Sometimes I will need to speak to the attorneys about legal elements of the case that are not appropriate for the jury to hear. The attorneys and I will try to have as few of these conferences as possible while you are giving us your valuable time in the courtroom. But, if we do have to have such a conference during testimony, we will try to hold the conference at the side of my desk so that we do not have to take a break and ask you to leave the courtroom. Recesses: Breaks in an ongoing trial are usually called “recesses.” During a recess you still have your duties as a juror and must follow the rules, even while having coffee, at lunch, or at home. Instructions Before Closing Arguments: After all the evidence has been presented to 16 you, I will instruct you in the law that you must follow. It is important that you remember these instructions to assist you in evaluating the final attorney presentations, which come next, and, later, during your deliberations, to help you correctly sort through the evidence to reach your decision. Closing Arguments: The attorneys will then have the opportunity to make their final presentations to you, which are called closing arguments. Final Instructions: After you have heard the closing arguments, I will instruct you further in the law as well as explain to you the procedures you must follow to decide the case. Deliberations: After you hear the final jury instructions, you will go to the jury room and discuss and decide the questions I have put on your verdict form. You will have a copy of the jury instructions to use during your discussions. The discussions you have and the decisions you make are usually called “jury deliberations.” Your deliberations are absolutely private and neither I nor anyone else will be with you in the jury room. Verdict: When you have finished answering the questions, you will give the verdict form to the bailiff, and we will all return to the courtroom where your verdict will be read. When that is completed, you will be released from your assignment as a juror. What are the rules? Finally, before we begin the trial, I want to give you just a brief explanation of rules you must follow as the case proceeds. Keeping an Open Mind: You must pay close attention to the testimony and other evidence as it comes into the trial. However, you must avoid forming any final opinion or telling anyone else your views on the case until you begin your deliberations. This rule requires you to keep an open mind until you have heard all of the evidence and is designed to prevent you from influencing how your fellow jurors think until they have heard all of the evidence and had an opportunity to 17 form their own opinions. The time and place for coming to your final opinions and speaking about them with your fellow jurors is during deliberations in the jury room, after all of the evidence has been presented, closing arguments have been made, and I have instructed you on the law. It is important that you hear all of the facts and that you hear the law and how to apply it before you start deciding anything. Consider Only the Evidence: It is the things you hear and see in this courtroom that matter in this trial. The law tells us that a juror can consider only the testimony and other evidence that all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing anything else is wrong and is against the law. That means that you must not do any work or investigation of your own about the case. You must not obtain on your own any information about the case or about anyone involved in the case, from any source whatsoever. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. You must not visit places mentioned in the trial or use the internet to look at maps or pictures to see any place discussed during trial. Do not provide any information about this case to anyone, including friends or family members. Do not let anyone, including the closest family members, make comments to you or ask questions about the trial. Jurors must not have discussions of any sort with friends or family members about the case or the people and places involved. So, do not let even the closest family members make comments to you or ask questions about the trial. In this age of electronic communication, I want to stress again that just as you must not talk about this case face-to-face, you must not talk about this case by using an electronic device. You must not use phones, 18 computers or other electronic devices to communicate. Do not send or accept any messages related to this case or your jury service. Do not discuss this case or ask for advice by any means at all, including posting information on an Internet website, chat room or blog. No Mid-Trial Discussions: When we are in a recess, do not discuss anything about the trial or the case with each other or with anyone else. If attorneys approach you, don’t speak with them. The law says they are to avoid contact with you. If an attorney will not look at you or speak to you, do not be offended or form a conclusion about that behavior. The attorney is not supposed to interact with jurors outside of the courtroom and is only following the rules. The attorney is not being impolite. If an attorney or anyone else does try to speak with you or says something about the case in your presence, please inform the bailiff immediately. Only the Jury Decides: Only you get to deliberate and answer the verdict questions at the end of the trial. I will not intrude into your deliberations at all. I am required to be neutral. You should not assume that I prefer one decision over another. You should not try to guess what my opinion is about any part of the case. It would be wrong for you to conclude that anything I say or do means that I am for one side or another in the trial. Discussing and deciding the facts is your job alone. 19 JURY INSTRUCTION NO.7 202.3 NOTE-TAKING BY JURORS If you would like to take notes during the trial, you may do so. On the other hand, of course, you are not required to take notes if you do not want to. That will be left up to you individually. You will be provided with a note pad and a pen for use if you wish to take notes. Any notes that you take will be for your personal use. However, you should not take them with you from the courtroom. During recesses, the bailiff will take possession of your notes and will return them to you when we reconvene. After you have completed your deliberations, the bailiff will deliver your notes to me. They will be destroyed. No one will ever read your notes. If you take notes, do not get so involved in note-taking that you become distracted from the proceedings. Your notes should be used only as aids to your memory. Whether or not you take notes, you should rely on your memory of the evidence and you should not be unduly influenced by the notes of other jurors. Notes are not entitled to any greater weight than each juror’s memory of the evidence. 20 JURY INSTRUCTION NO.8 202.4 JUROR QUESTIONS Questions for the court or courtroom personnel: During the trial, you may have a question about these proceedings. If so, please write it down and hand it to the bailiff, who will then hand it to me. I will review your question with the parties and their attorneys before responding. Questions for witnesses: You also may have a question you think should be asked of a witness. If so, there is a way for you to request that I ask the witness a question. After all the attorneys have completed their questioning of the witness, you should raise your hand if you have a question. I will then give you sufficient time to write the question on a piece of paper, fold it, and give it to the bailiff, who will pass it to me. Do not put your name on the question, show it to anyone or discuss it with anyone. I will then review the question with the attorneys. Under our law, only certain evidence may be considered by a jury in determining a verdict. You are bound by the same rules of evidence that control the attorneys’ questions. If I decide that the question may not be asked under our rules of evidence, I will tell you. Otherwise, I will direct the question to the witness. The attorneys may then ask follow-up questions if they wish. If there are additional questions from jurors, we will follow the same procedure again. By providing this procedure, I do not mean to suggest that you must or should submit written questions for witnesses. In most cases, the lawyers will have asked the necessary questions. 21 JURY INSTRUCTION NO.9 202.5 JURY TO BE GUIDED BY OFFICIAL ENGLISH TRANSLATION/ INTERPRETATION A witness may testify in Spanish which will be interpreted in English. The evidence you are to consider is only that provided through the official court interpreters. Although some of you may know Spanish, it is important that all jurors consider the same evidence. Therefore, you must accept the English interpretation. You must disregard any different meaning. If, however, during the testimony there is a question as to the accuracy of the English interpretation, you should bring this matter to my attention immediately by raising your hand. You should not ask your question or make any comment about the interpretation in the presence of the other jurors, or otherwise share your question or concern with any of them. I will take steps to see if your question can be answered and any discrepancy resolved. If, however, after such efforts a discrepancy remains, I emphasize that you must rely only upon the official English interpretation as provided by the court interpreter and disregard any other contrary interpretation. 22 JURY INSTRUCTION NO.10 JUDGMENT A party suffers a legal injury as the result of an adverse judgment, regardless of whether the party has paid, or has the ability to pay, any money toward the judgment.2 2 See Am. Fire & Cas. Co. v. Davis, 146 So. 2d 615, 619 (Fla. 1st DCA 1962) (holding that “unpaid judgments” are “injuries in themselves, their overburden measuring the pecuniary damages” and that “prior satisfaction of the excess judgment is not a prerequisite to bringing an action against one’s insurer for damages due to negligence or bad faith in failing to settle a claim within the policy limits.”); see also Camp v. St. Paul Fire & Marine Ins. Co., 616 So. 2d 12, 15 (Fla. 1993) (holding a debtor’s liability insurer may be held liable for the entire excess judgment – even if the insured debtor is bankrupt and has been discharged from any personal liability – because the estate is harmed by the debt); May v. Illinois Nat. Ins. Co., 190 F.3d 1200, 1202 (11th Cir. 1999), certified question answered, 771 So. 2d 1143 (Fla. 2000) (holding that a decedent’s liability insurer may be liable for the entire excess judgment owed by the estate even if the estate cannot pay it, because “[t]he amount the insured is obligated to pay constitutes the extent of damages”). 23