Family law trials are wrought with emotions. Although you are presenting evidence and making legal arguments, sometimes it is hard to keep litigants, opposing counsel, and the judge focused on the narrow issues being tried without all of the extra noise. Sometimes trials involve complex legal arguments that require citations to important case law, which cannot readily be presented during the course of the trial. Motions (or actions) in limine and trial briefs are both excellent tools that you can use to clearly and concisely focus the issues being presented to the court. This article will explain what motions in limine and trial briefs are, the pros and cons of filing motions in limine, and strategic considerations when you are filing motions in limine and trial briefs.
What Is a Motion (or Action) in Limine?
The Latin phrase “in limine” means “on the threshold.” A motion in limine literally refers to a motion made “on the threshold” of trial. Specifically, a motion in limine is a pretrial motions asking that certain evidence be found inadmissible and cannot be referred to or offered at trial. The authority for the use of motions in limine stems from the trial court’s inherent discretionary power to admit or exclude prejudicial evidence. Depending on the court’s procedures, a motion in limine is brought by a certain date pursuant to a trial order or on the actual first day of trial before opening statements or testimony. A motion in limine is made in writing and submitted to court; thus, it becomes part of the legal record of your case.
A motion in limine can eliminate the noise surrounding a family law trial by preventing your opposing attorney from introducing improper evidence. Trials can be extremely long and onerous, and it is to your client’s benefit to ensure the only evidence presented is evidence that is proper. This ensures that the court is only considering relevant evidence and is not distracted or overwhelmed with superfluous, improper, or prejudicial information.
One example of such improper evidence is evidence that is prejudicial. Using a motion in limine, you can exclude anticipated prejudicial evidence before the evidence is actually offered. Luce v. United States, 469 U.S. 38, 40 n.2 (1984). This is especially important for family law cases, as litigants often cannot separate emotional from legal issues. A judge most likely does not need to hear about the entire history of the marriage and about why a party believes their spouse is a terrible person, especially in states where divorce is “no-fault.” It is to your client’s benefit to limit the evidence to pieces of information that are legally relevant. Although a court might not give irrelevant or prejudicial evidence any weight, the same rule of thumb generally applies for trials as for written contracts—if it is not necessary, then do not have it in there.
This leads to another use of motions in limine, which is to bar irrelevant or overly broad evidence. Motions in limine are effective tools for narrowing the issues at trial by barring irrelevant information. In no-fault divorce states, the horrible things a spouse might have done are not relevant. A lot of time and testimony could be wasted at trial delineating the reasons why the parties are getting divorced that are not relevant to the actual legal issues at hand. There are also claims in divorce cases that have limited timeframes associated with them, so motions in limine can be used to bar information outside of the particular timeframe. For example, claims that the opposing party “dissipated” or wrongly disposed of marital assets might be confined to a particular period of time by law. Some states may only allow litigants to go back a certain number of years or to a defined period of time (e.g., during the “breakdown of the marriage”) to prevent claims from spanning the entire length of a marriage.
A motion in limine is also a useful tool as a sanction for failure to comply with discovery requests. If a litigant fails to produce a document or disclose a witness in a timely manner, you may consider filing a motion in limine requesting the evidence and/or testimony be barred. If, for example, a party fails to turn over information regarding their income after you have issued valid discovery requests and filed a motion to compel, then you should prepare a motion in limine to bar them from presenting evidence or testifying regarding their income. As another example, imagine you are exchanging exhibits for trial and all of the sudden you receive a document from opposing counsel that you have never seen before in any of the discovery previously provided. Consider filing a motion in limine as the tool (or sanction) for the opposing parties’ failure to previously produce the document. Similarly, a motion in limine can be used if a trial court’s ruling is unclear regarding discovery or if there is uncertainty as to whether there has been compliance with a discovery order.
However, when using this tool to bar evidence, you must be able to show that the opposing side’s failure to produce a particular document or piece of information is prejudicial to your client. Failure to produce documents showing nonmarital (or separate) property (i.e., financial statements) might be prejudicial to your client, but failure to produce a single mortgage statement might not be. It is important to remember that when you are seeking sanctions for a discovery violation, the burden of showing prejudice is on the party who files the motion in limine. Be prepared to establish that the opposing side’s failure to disclose evidence prejudiced your client. A motion in limine is not a “gotcha” weapon to bar evidence or testimony. Ultimately, the judge will want to hear the most evidence and testimony possible to make an informed ruling on your case. Evidence and testimony should not be barred merely because a document or piece of evidence was not previously produced. The relevant question is whether the failure to produce said document or evidence is prejudicial. If not, then the motion in limine is not a proper request.
A motion in limine can also be used strategically to facilitate the admission of evidence that a court might otherwise consider distasteful. If the court grants the motion, then said evidence will be explicitly allowed by the court. If the court denies the motion, then it will still give your client peace of mind that you have tried to get the evidence admitted. Clients often just want their stories heard, so by making the effort you can demonstrate to your client that their voice is important.
Finally, an advantage to a motion in limine is that it can be used to educate the court. The motion can do this by giving a more in-depth analysis of a particular issue or piece of evidence and information. This is especially useful for more complex factual issues. A motion in limine can provide the court with a more detailed picture of the documents and evidence as they relate to the particular issue. A good use, for example, is to provide the judge with a detailed analysis of why a particular piece of evidence or information is not relevant to a particular issue. You have the opportunity to both describe the legal elements of a particular issue and discuss proper and improper evidence as they relate to the issue. Finally, as a motion in limine is made in writing, it becomes part of the court file and preserves a record for appeal.
Despite the above, motions in limine do have limitations. Specifically, a motion in limine is not a dispositive motion. A dipositive motion can put an end to the actual legal proceeding or just a portion (or portions) of a legal proceeding. For example, dispositive motions include motions for summary judgment or a motion to dismiss. A motion in limine cannot be used in lieu of a motion for summary judgment or a motion to dismiss. While a motion in limine, if granted, may ultimately render a particular issue moot, the court cannot dismiss the proceeding or a claim through the granting of a motion in limine. The timing for bringing dispositive motions versus motions in limine also differs. A dispositive motion is brought during pretrial litigation. A motion in limine is literally brought on the “threshold” of trial; therefore, a motion in limine is brought after the pretrial stage.
While preparing a motion in limine, you may be tempted to put in more information than necessary. Do not be overly broad or too general as to what evidence and/or testimony should be barred. When filing a motion in limine, do not go into a long explanation as to why your opposing parties’ evidence is insufficient. The point of the motion in limine is to narrow the issues and focus the trial, not to make broad sweeping statements.
A motion in limine can set the tone and frame the issues for the entire trial, as it is the motion that is heard first by the court on the “threshold” of trial. In some circumstances, it will be the first motion the trial judge hears on your case. Also, it may be the trial judge’s first experience with you and your case at all. First impressions matter. Therefore, your motion should be well-written, clear, and supported by the law.
Motions in limine should be specific and simple. As with all motions, the simpler and clearer the better. The judge needs to clearly understand the legal issue and the relief you are seeking. You may want to consider different motions in limine for different issues to make sure each issue is clearly defined. For example, you might not want to have one combined motion in limine relating to the opposing party’s failure to produce a document on the one hand, and an overly prejudicial piece of evidence on the other, as there are different arguments as to why each of those items should be barred.
The motion in limine should relate to a specific issue in the case or the opposing party’s failure to comply with a specific discovery request. A litigant who fails to produce financial documents may be barred from testifying about financial issues but will not necessarily be barred from testifying to issues related to custody. The punishment should fit the crime, and the relief you request should be proportional.
You should also consider that a motion in limine can be a useful tool to foster settlement of either the entire case or specific issues in the case. If you know certain evidence and/or testimony will be excluded or included, you, your client, and the opposing party will have a clearer understanding of the strengths and weaknesses of your respective cases. Everyone’s cards are on the table, and both sides know the evidence the court will and will not consider.
A trial brief sets forth the facts, evidence, and legal arguments on a particular issue or issues supported by citations to legal authority (statutes and case law), authoritative writings, statistics, or other articles and sources. A trial brief is especially useful for more complex factual issues, legal issues, and arguments. You can go into a detailed background of the case, cite specific statutes, and provide an in-depth analysis of a body of case law. This type of detailed analysis is almost impossible to present in the course of trial. A trial brief gives you the time and opportunity to do so. A trial brief can also assist the court in ultimately writing its decision after trial because the court will have the arguments and the supporting law at its fingertips as framed by you. It is your opportunity to provide the judge with detailed information and legal arguments. Consider yourself a teacher who wants to “teach” your student a particular legal issue.
The organization of a trial brief is important as it can help make your argument stronger and more effective. Sometimes the court will not have time to pore over your brief, and in many circumstances the court may actually read it very quickly. Therefore, put your strongest argument first, and literally on the first page. It is crucial to capture the court’s attention right off the bat and make a strong impression of your case before trial. By strategically placing your strongest argument first, you provide the court with an elevator pitch for the rest of your case.
Also, frame the issues by using succinct, conclusory headings to draw attention to your arguments. You should make your arguments in one sentence in your headings so that the arguments are pronounced and easily skimmed by the court. The headings are the skeleton of your arguments and will provide an organized outline for the court. Briefs that are easily read and can be summarized will leave a longer-lasting impression with the court.
To be clear, trial briefs are not law review articles or dissertations. The research for your trial brief should be targeted to the specific arguments you are making. There is no need to cite the entire body of law as it will just muddle the arguments you are making. However, make sure to include case law that is also not favorable to your case. This is an opportunity to take the wind out of the opposing party’s sail by distinguishing unfavorable case law and framing the issue in your favor. Turning around negative case law to bolster your arguments is a highly effective trial brief technique.
Although, a trial brief is a detailed analysis of sometimes complex legal issues, simplicity is still an important and effective stylistic component. Your arguments should be clear and concise and written in an organized way. Do not forget the fundamental structure of legal writing: (1) issue, (2) rule of law, (3) argument, and (4) conclusion. This simple structure will ensure that all of your arguments are easy to follow. If a legal issue is complex, break the argument down into its separate parts. For example, if a particular claim or argument has multiple elements, break down your argument to go through each element.
Motions in limine and trial briefs are the first and lasting impressions for the court. They are both great trial tools to provide the court with detailed information and legal arguments as well as to help make your trial presentations clear, concise, and effective.