Effective motions in limine.

The motion in limine can help the plaintiff lawyer win the case before trial ever begins.

One of the hallmarks of superior trial lawyers is the skill of anticipating evidentiary issues that will occur during trial. Indeed, effective pre-trial preparation includes using powers of prediction to plan appropriate responses to an opponent's objections, strategy, and actions.

The reward can be advance court rulings that affirm or highlight the strengths of a client's case, the weaknesses of an opponent's, and the law that will control the court's decisions. The chief method for obtaining these advance rulings is the motion in limine.

Some lawyers believe motions in limine are designed to limit or suppress evidence, but "in limine" simply means "at the threshold, at the very beginning, preliminarily."(1) Accordingly, these motions are normally made at an early stage in litigation, and the earlier, the better.

For example, suppose that during the plaintiff's deposition in a personal injury case, defense counsel elicited information that the plaintiff suffered a prior unrelated injury. A relevance objection can be made when defense counsel later seeks to introduce the prior injury during cross-examination at trial. A motion in limine could also be made after the direct examination, immediately before the defense counsel's attempted introduction of this irrelevant material.

However, a pre-trial court ruling preventing the issue from ever being raised can aid in the presentation of the plaintiff's case and, possibly, can suggest that the defendant engage in serious settlement negotiations.

Thus, motions in limine ought to be considered at the earliest opportunity, perhaps at the pre-trial conference or at a specially scheduled hearing.

The Federal Rules of Evidence and most state evidence codes do not specifically refer to motions in limine.(2) But case law in virtually all jurisdictions permits them based on the inherent right of the judge to make threshold decisions on the admissibility of relevant evidence under Federal Rule of Evidence 104 and the exclusion-of-evidence provisions of Rule 403.

With these provisions in mind, a motion in limine can be used to (1) ensure the admissibility of evidence before trial and permit counsel's reference to it during trial (inclusionary motions), (2) prohibit evidence from being admitted or referred to by counsel at trial (exclusionary motions), and (3) require further discussion about potentially objectionable evidence out of the presence of the jury before opposing counsel or a witness has a chance to mention it (preclusionary motions).

Inclusionary motions

Plaintiff moves in limine for an order of this court that the following exhibits and evidence are considered to be admitted into evidence at the trial of this action. Plaintiff asserts that the exhibits and evidence are relevant, authentic, and admissible and that the foundational requirements would be presented by competent testimony at trial. This motion is designed to conserve trial time and to eliminate needless presentation of evidence.

Pre-trial motions for admission of evidence are primarily designed to aid in the orderly presentation of testimonial evidence, trial exhibits, and statements of counsel.

The arguments directed to the court usually are framed in terms of judicial economy. However, the movant is often simply trying to discover whether the opponent will raise an objection to the matter at trial and, if so, the grounds for the objection. The movant then can counter the objection or, perhaps, correct the evidence so it can be admitted.

For example, at the pre-trial conference, the movant may request a ruling on admission of photographs, videotapes, models, or charts. This would allow the movant to use this evidence during the opening statement or later in trial without first authenticating it and formally offering it as evidence.(3)

If no objection is made at the pre-trial hearing, the court can permit the use without further judicial intervention later at trial. If the opposing party does object and the court agrees with the objection, the movant may be able to make modifications to the evidence at issue to correct the problems with its admissibility in time for the trial.(4)

Inclusionary motions in limine can also be made to obtain advance rulings of evidence to counter a defense claim. For example, a defendant may claim that modifications to an allegedly defective product were not feasible or not within the defendant's control. The plaintiff could then move in limine to introduce evidence of various remedial measures, repairs, or recall letters. This might either force the defense to abandon its claim or enable the plaintiff to introduce evidence to counter it.

Exclusionary motions

Plaintiff moves in limine for an order of this court that the following evidence is inadmissible and that counsel and all witnesses be instructed to not refer to, mention, or comment on it on the grounds that it is irrelevant, is precluded by Rule --, and/or is excludable by Rule 403.

The more common exclusionary motion in limine seeks to exclude evidence on the ground that it is irrelevant; that its introduction is barred by one of the hearsay or relevance rules;(5) or that the jury will be confused, misled, or unfairly prejudiced by its introduction.(6)

The most common use of this motion is to exclude evidence of a prior conviction to impeach a witness in a criminal trial pursuant to Rule 609. A pre-trial ruling on the motion can help a criminal defense attorney explain to the defendant the benefits and consequences of the witness's in-court testimony. In the civil arena, parties can use the motion to exclude several types of evidence, including, for example, evidence of a plaintiff's prior drug use or disabling of an airbag, or hearsay statements made during a deposition.

This type of motion in limine not only prevents evidence from being introduced, it also prevents opposing counsel and opposing witnesses from even mentioning the excluded evidence during the trial within the hearing of the jury. Should the order be violated, a court's cautionary instructions to the jury to disregard the matter can be given, but are usually ineffective in preventing jury prejudice. If prejudice seems likely, a new trial may be required.(7)

Preclusionary motions

Plaintiff moves in limine for an order of this court that before introduction or comment on the following evidence, counsel shall first ask for the courts ruling on the admissibility of the evidence out of the presence of the jury. Plaintiff asserts that it plans to object to the evidence and that this will bring undue attention to the evidence.

The third purpose of the motion in limine is to highlight the importance of the evidence and to require that it not be mentioned in the jury's presence without first having an opportunity to argue admissibility issues before the court. While a ruling like this can follow either the inclusionary or exclusionary motion, a preclusionary motion has its own goal and approach.

This type of motion is often used to preclude any reference in opening statements of potentially excludable and highly prejudicial matters. It is best applied when premature mention of the evidence that may or may not later be introduced would "ring a bell that cannot be `unrung.'"

For example, the motion can be used to exclude any reference by defense counsel during opening statement to specific incidents of the plaintiff's bad conduct that defense counsel may question a potential character witness about. If the character witness is never called, the evidence of bad conduct will not be admissible.

It might also be used to prevent defense counsel from referring to a hearsay statement that is not admissible without defense counsel first establishing the requisite foundation through witness testimony. A ruling that does this ensures that the jury will not be poisoned by an opening statement that refers to evidence that might not be heard during the trial.

Courts are seeing an increase in the use of motions in limine in situations that can best be described as "motions battles." Typically, one party argues a motion that would prevent an opponent from offering evidence. The opponent counters with a motion in limine that is conditioned on the court's grant of the original motion. These battles can aid the parties and the judge by streamlining the case for jurors.

A typical example involves a common insurance company practice in automobile collision cases. A few days after a crash, the defendant's insurance carrier usually sends an investigator to interview the injured plaintiff, who has not yet retained an attorney. The investigator takes a statement, which is reduced to writing and witnessed by the investigator.

When a personal injury claim is later filed, the defendant usually moves to prevent any mention of the word "insurance" with regard to the plaintiff's statement should the defendant decide to use the statement at trial, citing Federal Rule of Evidence 411. The plaintiff counters by seeking an order allowing it to use the words "investigator for the defendant" if the statement is used to show the bias of the person who took the statement. In this scenario, the battle of the motions produces a ruling that will assist the parties in trial planning and will negate the need for an extended sidebar discussion of evidence during the trial.

Problems and proposals

The most problematic issue regarding motions in limine is the concept of preservation of a claim of error for appeal. A proposed amendment to Federal Rule of Evidence 103 provides that "once the court, at or before trial, makes a definitive ruling on the record admitting or excluding evidence, a party need not renew an objection or offer of proof to preserve a claim of error for appeal."(8)

This provision, although not reflective of every jurisdiction in the country, takes the well-reasoned view that, once argued, the matter need not be argued again.

One goal of the motion in limine is to conserve the court's time, and this goal would be defeated by requiring a movant to raise at trial an evidentiary issue that had already been settled.

The essence of this proposed rule is the concept of "definitive." The committee note on the proposal states:

   [W]here the trial court appears to have reserved its ruling or to have
   indicated that the ruling is provisional, it makes sense to require the
   party to bring the issue to the court's attention subsequently.... [T]he
   amendment imposes the obligation on counsel to clarify whether an in limine
   or other evidentiary ruling is definitive when there is doubt on that
   point.(9)

Accordingly, counsel should seek to obtain clarity as to the definite character of the court's ruling, usually by a specific finding by the court or by a stipulation by counsel.

The proposed rule includes one important additional provision: the offer of proof. Currently, to preserve a record of error for appeal when a court sustains an objection to the admission of evidence, the lawyer seeking its admission must proffer the excluded evidence outside the jury's presence. This remains the same. The proposed change affects only the timing of the offer.

Under the proposed rule, the offer can either be made at the motion in limine hearing or later at trial. A pre-trial offer of proof allows counsel to preserve error without interrupting the trial. On the other hand, if the offer of proof is postponed until trial, not only is any claim for error preserved for appeal, but the judge can determine whether the earlier ruling on the in limine motion should be changed.

The proposed federal rule also contains a sentence that would settle a conflict among the circuits. It provides: "But if under the court's ruling there is a condition precedent to admission or exclusion, such as the introduction of certain testimony or the pursuit of a certain claim or defense, no claim of error may be predicated upon the ruling unless the condition precedent is satisfied."(10)

This sentence is intended to codify Luce v. United States,(11) a particularly harsh decision that held that if a trial court has denied a defense request to exclude evidence of a criminal defendant's prior convictions, the defendant must take the stand in order to later appeal the court's decision. The committee note indicates that this amendment would "logically apply" to other cases, civil and criminal, that have a trial event--like the presentation of a claim or affirmative defense--as a condition precedent to admitting or excluding evidence.

The Luce decision and this proposed rule do not help counsel in determining whether a condition precedent exists. Accordingly, counsel should obtain a definitive ruling whether a condition precedent is part of the ruling. If it is, as it was in Luce, then counsel will have to introduce the evidence and weigh the consequences of doing so against the potential for an appellate court finding reversible error. For example, should a plaintiff who claims to suffer post-traumatic stress disorder fail to prevent the defendant from introducing the plaintiff's prior psychiatric records, the plaintiff's counsel must raise the claim in order to assert error by the court.

A possible alternative, suggested by a reading of the proposed rule, would be to present the evidence in an offer of proof to show that the condition precedent would be satisfied. For example, in the Luce case, defense counsel might have offered the defendant's testimony in camera, which might have preserved for appeal the court's denial of the motion in limine.

The committee specifically notes that the amendment does not, however, seek to answer the question of whether a party waives the right to appeal from a definitive ruling that admits harmful evidence (like prior conviction impeachment evidence) if the party introduces the disputed evidence in a manner designed to reduce the sting--for example, during direct examination. Two circuits (the Fifth and the Eleventh) have ruled that the fight is preserved, while two others (the First and the Ninth) have determined that the right is waived.(12) Consequently, in cases like these, attention must be given to the specifics of the court order granting or denying the motion.

Proposed Rule 103 gives greater recognition to the vitality of a motion in limine and proves its importance to trial lawyers. These motions can be used to help frame the issues, present the evidence, and increase the value of potential settlements. In every case, the question to ask is not whether to make a motion in limine, but which ones to make.

Notes

(1.) BLACK'S LAW DICTIONARY 787 (6th ed. 1990).

(2.) But see, e.g., KY. R. EVID. 103(d): "A party may move the court for a ruling in advance of trial on the admission or exclusion of evidence."

(3.) Even though the requirements of authentication and relevance would not be necessary, it is always good practice for counsel to have the witness express familiarity with the exhibit. Although the magic words of admissibility are not necessary, witness credibility may be enhanced by this technique.

(4.) See, e.g., William S. Bailey, Good Counsel: Plan Ahead, TRIAL, Oct. 1998, at 79, 80.

(5.) These rules include FED. R. EVID. 404 (Character Evidence); FED. R. EVID. 407 (Subsequent Remedial Measures); FED. R. EVID. 408 (Compromise); FED. R. EVID. 409 (Payment of Medical Expenses); FED. R. EVID. 410 (Pleas); FED. R. EVID. 411 (Liability Insurance); FED. R. EVID. 412-415 (Sex Cases); FED. R. EVID. 608 (Character); and FED. R. EVID. 609 (Convictions).

(6.) FED. R. EVID. 403.

(7.) See, e.g., Rutledge v. St. Anne's Hosp., 595 N.E.2d 1165 (Ill. App. Ct. 1992).

(8.) COMMITTEE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, PRELIMINARY DRAFT OF PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE AND EVIDENCE, REQUEST FOR COMMENT 112 (Aug. 1998).

(9.) Id. at 113.

(10.) Id. at 112.

(11.) 469 U.S. 38 (1984).

(12.) Compare United States v. Fisher, 106 F.3d 622 (5th Cir.), corrected, 1997 U.S. App. LEXIS 12671 (5th Cir. Feb. 13, 1997), and Judd v. Rodman, 105 F.3d 1339, 1342 (11th Cir.), reh'g en banc denied, 114 F.3d 1204 (11th Cir. 1997), with Gill v. Thomas, 83 F.3d 537 (1st Cir. 1996), and United States v. Williams, 939 F.2d 721, 725 (9th Cir. 1991).

Laurence M. Rose is the director of the Litigation Skills Program at the University of Miami School of Law.