Trial Motion Practice Pointers Part I: Pretrial and In-Trial Motions

Pretrial: Motion in Limine and/or Rule 16(d) Evidentiary Objections
Keeping out evidentiary material that is prejudicial, irrelevant, or otherwise inadmissible and harmful to your client is crucial to succeeding at trial in front of a jury. Many cases have been lost due to the admission of inflammatory (yet irrelevant) or inadmissible evidence that persuaded the jury despite being legally inadmissible. To prevent the jury from being poisoned by such evidence, pretrial groundwork must be laid to have such evidence excluded. Thus, all important evidentiary issues should be raised in a motion in limine pursuant to Federal Rule of Evidence 104(a) or the corresponding state-court rule. Another avenue for raising pretrial evidentiary issues in federal court is through a Rule 16(d) joint pretrial statement, which among other things identifies objections to witnesses and exhibits that were in pretrial disclosures. The court may require the parties to submit a trial brief that sets out their positions based on disputed issues, and may hold a hearing on those issues prior to trial. The same is often accomplished through briefing of motions in limine.

Regardless of format, it is critical that your motion or brief clearly set forth the pertinent facts and evidentiary law. Even if the court does not rule on the motion and/or trial-brief issues before trial, often because the issue is too fact-intensive to rule on without hearing more evidence, raising objections in advance gives the court a heads-up on the evidentiary minefields that lay ahead at trial. Teeing up a disputed evidentiary issue before trial also lays the legal groundwork for renewing the objection down the road and will prevent the trial judge from plowing ahead into that area without special consideration. Keep in mind the following basic guidelines regarding pretrial motions.

Timing
A court may rule on motions in limine by written order or orally, generally directly before trial. You should consult the trial scheduling order to determine when motions in limine and the Rule 16(d) pretrial order are due to be filed. State courts may require motions in limine to be filed no earlier than a week or so before trial, and will allow all types of motions in limine to be filed on the eve of trial, including those dealing with experts. However, federal courts follow strict scheduling guidelines set out by the court or the federal rules as a default, and may require extensive briefing and/or a separate hearing, particularly on motions dealing with experts (Daubert motions).

What Qualifies as an “Important” Issue That Should Be Raised Before Trial?
While it is crucial to raise any evidentiary issue that may have a meaningful impact on your case, raising every possible objection no matter how hypothetical or trivial will not win you any friends. However, raising objections ahead of time can allow the other side to stipulate to those objections. This is often the case with general blanket-type objections, such as an objection to mentioning a corporate defendant’s wealth. That being said, you should keep the following types of evidentiary objections in mind:

• Qualifications of a Person to Be a Witness: Fed. R. Evid. 601
• Issues Involving Unduly Inflammatory Evidence: Fed. R. Evid. 403
• Admissibility of Character Trait, Habit, Other Acts: Fed. R. Evid. 404, 405, 406
• Policy Exclusions: Fed. R. Evid. 407, 408, 409, 410, 411
• Privileges/ Exclusions (e.g., Attorney-Client Privilege): Fed. R. Evid. 50
• Hearsay: Fed. R. Evid. 801, 802, 803, 804, 805, 806, 807
• Admissibility of Transcripts as a Hearsay Exception or Exclusion: Fed. R. Evid. 801 (party admissions); 804 (former testimony rule)
• Admissibility of Expert Testimony (Daubert challenge): Fed. R. Evid. 702, 703

Preserving a Claim of Error for Appeal
Federal Rule of Evidence 103 (and comparable state evidentiary rules) requires that a litigant take certain steps to preserve evidentiary grounds for appeal. If objecting to evidence being admitted, the party must (1) state an objection on the record or move to strike the evidence, and (2) state the specific grounds for the objection. Fed. R. Evid. 103(a)(1). Once the court has definitively ruled on the objection on the record, whether at a pretrial motion in limine hearing, by order, or at trial, the objection is preserved and need not be renewed for preservation purposes. Fed. R. Evid. 103(b). If the court rules against admission of evidence, either before or at trial, the party seeking to admit the evidence must make an offer of proof to demonstrate what the evidence would have been to properly preserve the issue for appeal. Fed. R. Evid. 103(a)(2).

Evidentiary Motions During Trial
Despite best efforts to resolve evidentiary issues before trial, new or often the same evidentiary issues usually crop up again at trial. A less experienced trial lawyer must be prepared to handle these issues as they arise at the risk of waiving objections, being taken advantage by more experienced lawyers, and losing face with the judge and/or jury. Keep in mind the following practice pointers to avoid common pitfalls.

Be Prepared
Being prepared to address evidentiary issues on the fly is critical to succeeding in a dynamic trial environment. The keys to success are anticipating objections and having the requisite tools at your disposal to address them. If there is a particular case or statute on point for a specific issue, have a copy of the case/statute and any bench brief ready to present to the judge. Also, the following references are invaluable for purposes of making objections, responding to those objections, and laying the proper foundation for evidence in federal court. (Similar references are available for specific state evidentiary rules.)

• Federal Rules of Evidence; Federal Rules of Civil Procedure
• pattern jury charges
• Fundamentals of Trial Techniques, Trial Techniques, and Trial Evidence, by Thomas A. Mauet

Know How and When to Make Your Objection
Making your objection or responding to an objection to preserve issues for appeal should always be at the back of your mind in trial. However, how you make your objection at trial is equally important in implementing a winning trial strategy. Avoid making speeches in front of the jury; instead, state your objections succinctly. If the issue requires lengthy discussion, you should request that the parties approach the bench for a sidebar conference outside of the presence of the jury. It is best to ask for a sidebar prior to the judge stating his or her ruling, as he or she is unlikely to change that ruling once it has been stated in front of the jury.

Evidentiary issues are also often addressed during a break directly before those issues are likely to come up with a particular witness to avoid disruption or delay during trial. Trial counsel should always be cognizant of any approach to evidentiary issues that may allow the trial to run smoothly and stay on schedule. For example, stipulating to the admission of uncontested exhibits beforehand can save precious time at trial.

Do Not Stumble into Forbidden Issues Without Warning
Remember all those motions in limine? While you can revisit issues that have been ruled on previously in the context of a pretrial motion, be careful not to accidentally venture into motion in limine territory without first addressing the issue outside of the presence of the jury. Keeping a list of all motions in limine ruled on by the judge is helpful to prevent an inadvertent trespass.

Conduct a Pointed “Voir Dire” of an Expert Witness if Appropriate
Expert testimony is only admissible in federal courts, and most state courts, if it is in line with the principles set out by the U.S. Supreme Court in the familiar Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (U.S. 1993). The trial court has the discretion to resolve issues regarding admissibility of expert testimony prior to trial through Daubert motion briefing and/or a hearing, or the court can allow counsel to “voir dire” an expert at trial. In the second situation, counsel will present the witness’s qualifications and “tender” him as an expert. At this juncture, it is crucial to object to the qualifications and/or testimony and request to conduct a “voir dire” examination of the witness. Voir dire cross-examination, like a Daubert motion, should be targeted at excluding some or all of an expert witness’s opinions by focusing on fundamental flaws in the testimony, such as the following: the expert is not qualified (or is testifying beyond his or her qualifications); there is no basis for the opinion; the opinion covers matters that are common knowledge and do not assist the trier of fact (Fed. R. Evid. 702); the expert is usurping the role of the court. When an expert is clearly qualified and his or her opinions, though shaky, have some basis, the value of voir dire should be carefully considered. While voir dire presents an early opportunity to attack the expert’s credibility and/or less than sound opinions in front of the jury, keep in mind that voir dire is within the court’s discretion and that lengthy, aimless questioning may try the patience of the judge. You have only a limited number of chips to play, so use them wisely.

Don’t Forget to Invoke “the Rule”
Federal Rule of Evidence 615 allows for the exclusion of prospective witnesses (excluding a party or a party’s representative if the party is a corporation) upon motion. Invoking the rule is important because it prevents a witness from hearing other testimony that would likely have an impact on his or her own testimony. Nonetheless, a witness is allowed to be present if his or her presence is necessary to the presentation of a claim or defense. Fed. R. Evid. 615(c). This is often the case with expert witnesses who rely on the testimony of other witnesses in the presentation of their own testimony.

Listen to the Judge—He or She Might Be Trying to Help You
Don’t forget that a judge may be looking to make his or her own record for appeal, and sometimes this may benefit you. Keep your ears open for any hints the judge may be subtly or not so subtly conveying.

Post-Trial Motions: Stay Tuned
If you reach the end of the yellow-brick road and unfortunately find yourself empty handed or with a big, fat judgment against your client, all is not lost. There are a number of post-trial motions that provide one last opportunity for a reversal or at least a chance to soften the blow by reducing or supplementing a damages award. Post-trial motions will be covered in part two of this article in a subsequent newsletter, so stay tuned.

Keywords: litigation, pretrial practice, discovery, pretrial motion, motions in limine, trial motions

Betsy Collins is a partner and Taylor N. Barr is an associate with Burr & Forman, LLP in Mobile, Alabama.

^{Copyright © 2013, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).}