In my brief talk today about motions in limine, I want to focus our attention on motions in limine and What to Know.
Let’s start with a definition:
“Motion in limine” is the name commonly given a pretrial motion that attempts to prevent the offer of, or reference to, specific evidence or other matter in the presence of the jury.
In Estate of Chapman, 315 S.W.3d 162 (Tex. App. Beaumont 2010).
- Know the Objectives
Here are the primary objectives of a motion in limine:
- Preclude jury’s exposure to evidence or testimony that hurts you:
- Allow jury to see evidence or testimony that hurts your opponent;
- Narrow issues/expedite presentation of evidence;
- Advance education of the judge;
- Preserve the record;and
- Enhance settlement possibilities.
Let’s use the last objective –enhance settlement possibilities –as an example. Assume the parties mediated the lawsuit weeks before trial and opposing counsel disagreed about whether damaging evidence, for example EPA sanctions for benzene emissions, would be admissible in a lawsuit filed by residents near a refinery seeking diminished property value and medical monitoring.
At the limine hearing, the court’s ruling on whether the evidence of the EPA sanctions for improper benzene emissions gets before the jury will require one side or the other to reevaluate their view of this lawsuit. It is one thing to argue at the mediation about whether evidence comes in, it is something completely different to hear the court rulethat the evidence is in or out.
- Know the Rules, including the local, often unwritten, ones
If you are the kind of lawyer who likes knowing there is a rule for everything (and whose not?), then you won’t find much comfort in the world of motions in limine. The United States Supreme Court, in a footnote no less, said this about motions in limine, “[a]lthough the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court’s inherent authority to manage the course of trials.”Luce v. United States, 469 U.S. 38, 41 n. 4 (1984).
Instead of looking for a rule of procedure as a basis for a motion in limine, the better practice is to focus upon the rules of evidence. In federal courts, and state courts that follow the Federal Rules of Evidence, the best rules to cite are 103(c) and 104 (c). Federal Rule of Evidence 103(c) states that “in jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means.” Federal Rule of Evidence 104(c) provides for the hearing of preliminary motions outside the presence of the jury “when the interests of justice require.”
Many times the real guidance on limine practice is in either the local rules or the court’s procedures. Thus, it is critical, especially for all federal practice, that you read early and often the particular district’s local rules and the specific judge’s procedures. These are the rules that will, more often than not, govern the limine practice.
- Know the Judge
Even with a good grasp of the Federal Rules of Evidence, the local rules, and the court’s procedures, there is still a gap: how does the judge actually handle motions in limine. Ideally, you or your co-counsel has appeared before this judge and attended a limine hearing. If not, find someone who has and either hire them as your local counsel or get as much information from them as possible.
It is critical that counsel get off to a good start with the judge. In many cases, the limine hearing may be the first contested hearing before the district court judge –the magistrate handling all matters prior to trial. Not knowing the court’s practice and procedure for limine hearings can putcounsel at a disadvantage before the trial starts; the flip side is that being prepared and knowing how the court wants to conduct limine hearings can set the tone for a good rapport between counsel and the judge.
- Know YourAdversary
Do you trust your adversary? Is he or she honorable? These are important questions to ask when you consider what to include in a motion in limine.
For example, let’s take something as basic as the other side’s opening argument. I include in my motions in limine a request to see any visuals or Power Point Presentations at least 24 hours before it is shown to the jury.
Why? Because if my opposing counsel is going to put up my client’s logo with a skull & crossbones underneath it I want to see it before the jury does. Or, as happened to me in a case I tried for Shell in Phoenix, Arizona in November 2009, plaintiffs’ counsel compared my client’s product to the Ford Pinto during his closing arguments. We moved for a mistrial, which was denied. We won the trial, so justice did prevail, in the end.
In contrast to the scenario above, if you have a good working relationship with opposing counsel, you may be in a position to either agree or stipulate on basic issues, such as showing visuals to each other, how much notice to provide opposing counsel on when witnesses will testify, and other issues that reasonable persons should agree upon prior to trial.
- Know What You Don’t Want In
After you know the objectives, know the rules, know your judge, and know your adversary. You need to focus on what you do not want the jury to hear or see. What is it about your case that causes your heartburn? What evidence, if seen or heard by the jury, will prejudice the jury against your client? What evidence, if seen or heard by the jury, will result in irreparable harm to your client?
Answer these questions and then look for a reason –whether it be a rule of procedure, rule of evidence, rule of professional conduct, case law, statute, or anything else –to exclude or limit this evidence.
The evidence you want out may be prejudicial, cumulative, improperly withheld from discovery, or not relevant. The evidence may also be unreliable, as in a motion in limine that seeks to exclude opposing counsel’s expert based on either the Daubert or Frye standards for expert testimony.
- Know What You Want In
What is it that you want it? What evidence causes your opponent irreparable damage? What evidence, if seen or heard by the jury, will tie together your case theme? What evidence does your primary expert need admitted prior to his or her testimony? What evidence do you need admitted prior to cross examining plaintiffs’ key fact or expert witnesses?
Identify what you want in then use the rules of procedure, evidence, or professional conduct, statutes, or case law to support your affirmative motion to include this evidence at trial. Another way of approaching the evidence you want in and will need to work to get admitted is to think of what evidence your opponent will want to exclude.
- Know it May be Tentative
You know everything, right? Wrong. One issue that you need to know that you we have not discussed is whether the motion in limine preserves the record for appeals. In some jurisdictions, the ruling on a motion in limineis sufficient to preserve an issue for appeal. See, the.g., United States vs. Palmer, 3 F.3d 300 (9Cir. 1993). In other states, a limine ruling does not preserve an issue for appeal. In other jurisdictions, the limine ruling is tentative and the counsel must get a final ruling from the court during trial. See Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex. 1986)(holding that timely objection is necessary to preserve a complaint as to an improper question asked in violation of a limine order); see also Norfolk Southern Ry. Co. v. Bailey, 92 S.W.3d 577 (Tex. App. Austin 2002).
When in doubt, reurge the specific motion for exclusion or inclusion of evidence at trial. Also, judges are humans, too; they change their minds, especially for some issues that look one way at the limine hearing but look completely different during trial.
In many instances, the prevailing party celebrates too early --the losing party gives up too soon. If you lose a key point at the limine hearing, think of another way to bring the same issue to the court’s attention. After all, a “ruling on a motion in limine is no more than a preliminary, or advisory, opinion that falls entirely within the [court’s] discretion” United States v. Yannott, 42 F.3d 999, 1007 (6thCir. 1994),cert. denied, 513 U.S. 1182 (1995). Further, the trial court can “change its ruling at trial for whatever reason it deems appropriate.” Id.
Conversely, if you win a key point at the limine hearing, realize your win may be tentative and you should be prepared to argue the same issue but have your opponent use a different legal or evidentiary basis for excluding or including the evidence at issue. The skilled advocate realizes that winning or losing a limine issue is just the first battle in a prolonged war that is a jury trial.