Chapter 13-3 Witnesses

13-3 Witnesses

Witnesses must be disclosed in accordance with the court's trial order. General statements such as reservation of a right to call "'any and all necessary' impeachment and rebuttal witnesses" is insufficient.19 If a party attempts to call a witness who was not previously disclosed, it is within the purview of the court to exclude the witness.20 The court's discretion should consider the ability to cure any possible prejudice to the surprised party, any possible intentional non-compliance (or bad faith non-compliance) with the trial order, or possible disruption of the efficient trial of the case.21 Discretion takes into account local rules and customs, and the Florida Supreme Court has specifically endorsed this practice by local jurisdictions.22 Where no prejudice occurs to the surprised party, or where the prejudice can be cured, the court should not strike the surprise witness.23 Additionally, where the witness sought to be called is the sole or most important witness for the party, the trial court is to exercise caution to avoid depriving a party the opportunity to present evidence.24

13-3:1 Fact Witnesses

In a residential mortgage foreclosure trial, the plaintiff's primary witness is usually a records custodian or other representative of the mortgagee or loan servicer. The designated witness may testify regarding their individual knowledge, but primarily testifies about the collective knowledge of the company.25 Generally, this testimony will be based upon the records maintained by the servicer, and possibly prior servicers of the loan. Proof of contractual authority to testify is not required for a witness to lay the foundation for the business records exception to hearsay.26 The person who actually prepares the documents does not need to testify, as long as other circumstantial evidence and testimony can otherwise establish the trustworthiness of the information contained in the records.27 It is not necessary that the witness be employed by the servicer or lender at the time the business records were created as long as the witness establishes the necessary foundation for admitting documents.28 If prior servicer records are incorporated into the current servicer's records, it is important that the witness be able to testify that the accuracy of prior servicer records was verified.29 This may be done by describing the process utilized to verify the data provided by a prior servicer, commonly referred to as the "boarding process."30 It is not necessary that the witness personally participate in the boarding process.31 Once the witness has testified regarding verification of the prior servicer's records, if nothing else in the record establishes that the loan information received from a prior servicer was untrustworthy, then the records may be accepted as those of the current servicer.32

13-3:2 Expert Witnesses

Florida Evidence Code, Sections 90.702 governs use of expert witnesses in all trials, including foreclosure actions.33 Expert witnesses in foreclosure actions are rare, however, because these cases are fact-intensive and generally do not require specialized knowledge.34 Use of an expert to testify as to whether a plaintiff has standing, or whether a mortgage is a binding contract, is improper as the interpretation of Florida law is not an appropriate subject for expert testimony.35 However, when one party relies on expert testimony at trial, it must be rebutted by testimony of a counter-expert unless the trial court offers a reasonable explanation for rejecting the unrebbuted expert testimony.36

13-3:3 Subpoenas for...

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