September 17, 2019 Articles

In Limine Motions: Set the Battlefield for Success

Use in limine motions to shape your theme during discovery.

By Jeffrey M. Pollock

Environmental trials encompass a range of claims and issues, from common law to the technical language of the Resource Conservation and Recovery Act (RCRA) to interstate air quality modeling challenges under the Clean Air Act (CAA). Some environmental trials, like those involving nuisance and trespass, are common law claims and are tried to a jury. Others, such as those concerning the RCRA and the CAA, are bench trials. Some are highly technical battles of the experts, while others are based upon core tort principles. Many environmental trials, such as those dealing with emerging contaminants, are a mixture of common law and statutory law. Whatever the form of trial, however, it is critical to have a clear and persuasive theme establishing why you should prevail—and that theme should be expressed loudly and clearly in an in limine motion at the outset of trial.

Theme

Many lawyers miss a great opportunity to shape the themes because they treat discovery as a necessary evil, like eating broccoli or brussels sprouts. Rather than looking at discovery as an inconvenience, think of responding to discovery as an opportunity. Use discovery to introduce demonstratives, exhibits, and timelines that persuasively tell your story. Take the opportunity to embed your discovery responses with graphics that are (1) truthful, (2) persuasive, and (3) clear. For example, in answers to interrogatories or even in your answer to a complaint, why not embed helpful graphics and proofs that disprove your adversary’s claims? Use every opportunity at every step to sell your arguments.

In particular, don’t miss the opportunity presented by in limine motions to shape your theme during discovery. In limine motions serve several purposes. First, they frame the matter in dispute so that the trier of fact understands your perspective at the beginning of the hearing. For example, if the opposing party has destroyed evidence (spoliation), in limine motions are a great way of educating the court on the importance of that missing evidence—and the in limine motion has the added benefit of “poisoning the well.” Second, in limine motions can limit the issues in dispute. If your adversary has pleaded the kitchen sink in its complaint, the court may welcome having the issues for trial narrowed and sharpened. You, too, will benefit by having to present fewer proofs in response at trial. Third, in limine motions are a powerful tool in a jury trial to prevent your adversary from presenting prejudicial facts or arguments to the jury. For example, you may need to bar hearsay witnesses, incompetent documents, and unfounded damages analyses or claims. You cannot unring a bell; once the jury sees damaging evidence, it cannot “unsee” it no matter what limiting instructions the court may issue. Finally, in limine motions may also be used to shorten the trial or to bifurcate the dispute into more manageable pieces.

Limitations

In limine motions have some important limitations, however.

One critical limitation is that in limine motions are not a substitute for summary judgment. Think of a ruling on an in limine motion as an advisory opinion. In federal court more than in state court, Daubert motions are essential to determining whether an expert is permitted to opine. The federal courts are not required to hold a Daubert hearing prior to trial, but the court has the absolute right to do so. Motions may be paired or staged. For example, if you file a motion to bar unreliable data, which would be a proper motion in limine, and you prevail, you may want to then follow up with a second motion to bar the opposing expert from testifying based upon Daubert because the information that the expert was relying upon has now been found to be infirm.

If you are faced with an adverse ruling on an in limine motion, bear in mind that an in limine motion is typically a “tentative ruling.” If you believe that the court was in error in granting an in limine motion against you, then proffer the evidence that was excluded and force the court to rule against you at trial—otherwise you may not have preserved the issue for appeal. If a party is relying upon the in limine motion to admit evidence and you believe that the court’s ruling was wrong, object! Preserve the issue.

Risks

In addition to limitations, it is important to consider the risks of an in limine motion.

By pursuing a motion in limine, you are clearly and openly stating your core case. Weigh whether you wish to educate your adversary. In my experience, if you have a valid theme and have the proofs you need to prove your case, there is no downside to revealing your theme. After all, you have to tell the court at some point what your argument is really going to be. If you are not prepared to reveal your theme, consider the risk of leaving the court in a state of confusion.

One other risk is that the plan could backfire and the court could rule against you. Although this is a risk, trial is about balancing risks. If your analysis is correct and you have solid proofs, my respectful suggestion is to go with your gut instinct. Even bad news may be good news: if the court rules against you, at least now you know whether you have to change strategy or seek to settle. In limine motions will avoid the risk of having to guess.

Conclusion

In conclusion, trial is not merely about following the rules of evidence and dumping every relevant fact into the trier-of-fact blender. Rather, it is about having a theme (a story line, if you prefer) that is consistent with the facts and is persuasive. Finding your theme is hard work but essential to convincing the court or jury of the rightness of your cause. In limine motions are a powerful tool in framing that theme and heading your trial in a successful direction from the beginning.

Jeffrey M. Pollock is a civil trial attorney at Fox Rothschild in New York, New York.


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