February 21, 2019 Articles

Tips for Crafting Motions in Limine: The Good, the Bad, and the Underrated

Knowing that a motion in limine may be used offensively as well as defensively is only half the battle.

By Sarah E. Epperson

Attorneys often underestimate the power of a well-drafted motion in limine. A motion in limine often is viewed as a somewhat routine filing, designed to keep out unfavorable evidence—the legal profession’s equivalent of a shield, protecting the body of trial evidence from information that is harmful to your case. This view, however, is overly narrow. A motion in limine should be used by the legal profession as both a shield and a sword—to exclude unfavorable evidence as well as to pre-admit favorable evidence. When strategically and judiciously drafted, a motion in limine can be a highly effective weapon that will help you shape and control the body of evidence. This article details some of the many strategic uses and benefits of filing a motion in limine, as well as certain pitfalls, and provides tips to help you maximize your chances of success.

Motions in Limine: What Are They?

Leading authority on the topic states that the phrase “in limine” has been fully anglicized and thus is no longer is italicized. @BryanAGarner (editor in chief, Black’s Law Dictionary), Twitter (Jan. 17, 2017, 9:44 a.m.). It is a common misconception that the phrase “in limine” means “to limit.” See, e.g., Motions in Limine, OpenArgsWiki. In fact, when asked, many attorneys will describe a motion in limine as a motion specifically designed to preclude or limit certain evidence from being admitted at trial. But the phrase “in limine” actually derives from the Latin word “limen,” meaning “at the threshold”—describing a motion to be filed at the threshold of trial. See Cassell’s Latin Dictionary 319 (1957). In other words, the true purpose of a motion in limine is simply to obtain a pretrial ruling on evidentiary disputes to “narrow the evidentiary issues for trial and eliminate unnecessary trial interruptions.” Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990).

The authority permitting motions in limine generally stems from a court’s discretionary power to control trial proceedings. Luce v. United States, 469 U.S. 38, 40 n.2, 41, n.4 (1984). Additional guidance is found in the rules of procedure. See Fed. R. Civ. P. 104(a), 103(c) (authorizing courts to control pretrial proceedings and resolve preliminary questions of evidence); 21 Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice and Procedure § 5037.10 (2005). In addition to the federal courts, courts in at least 46 states accept motions in limine. Stewart S. Manela, Motions in Limine: On the Threshold of Evidentiary Strategy 2 (2003).

Why File a Motion in Limine?

Motions in limine most commonly are filed to prevent the introduction of evidence that is cumulative or repetitive, irrelevant, unfairly prejudicial, improperly obtained, confusing, misleading, not probative, or untimely disclosed, or that could cause delay disproportionate to its value. They also can be used to challenge the fitness of fact or expert witnesses (such as through a Daubert motion). See Timoney Knox, LLP, “On the Threshold: The Five Most Effective Motions in Limine in Any Coverage Dispute,” For the Defense, Oct. 2015 (citing Laurence M. Rose, “Effective Motions in Limine,” 35 Trial 50 (1999)).

Motions in limine also may be used to secure a pretrial ruling that certain evidence is admissible—particularly when you believe the other side will object to that evidence at trial. See, e.g., 1 McCormick on Evidence § 52, at 255 (6th ed. 2006); Petti & McKirgan, “Offensive Uses of Motions in Limine,” Trial Evid. J. (Am. Bar Ass’n), fn.8 (Winter 2007) (compiling additional authority). There are a number of benefits to filing an offensive (also called “inclusionary”) motion in limine:

  • Gaining advance knowledge of the body of evidence. Knowing what evidence will be admitted in advance of trial can be critically helpful in preparing trial strategy, evaluating the case for settlement, and ensuring that an opening statement does not include prejudicial or inadmissible evidence. For example, in Gomez v. Tucson Yellow Cab, 127 Ariz. 563 (1980), the plaintiff filed a motion in limine to admit evidence the defendant driver was involved in a collision about 20 minutes before the accident in question. Knowing whether such evidence would be admitted (spoiler alert: it was not) would certainly affect the parties’ trial strategy and preparation, as well as the content of any opening statement and witness examination. See, e.g., Ryan A. Ray, “Motions in Limine: To File or Not to File?,” Proof, Vol. 17, No. 4 (Summer 2009), at 2.
  • Preserving the ability to introduce evidence. If there is concern that certain evidence may become unavailable or inadmissible by the time of trial, knowing the admissibility of such evidence, and preserving the right to introduce it, can be incredibly helpful. For example, you may want to pre-admit a prior conviction when the 10-year limitation on the admissibility of the conviction, prescribed by Federal Rule of Evidence 609(b), will expire before trial (thus making its admission much less likely). See, e.g., Petti & McKirgan, supra.
  • Ensuring the court is fully informed. If you are concerned an opposing party may object to certain evidence or the underlying legal principles are complex, it is preferable to submit a well-supported brief, rather than relying on oral argument at trial. This not only permits you to make a clearer and stronger argument, but it gives the court more legal authority and time to consider the evidentiary issue, improving the likelihood the court’s ruling will be correct.
  • Shielding the jury from evidentiary disputes. Motions in limine allow an issue to be evaluated and decided without alerting the jury to any potential problems. This is particularly helpful when merely mentioning or raising the issue is so prejudicial that the prejudice cannot be removed by refusing to admit the evidence being offered. Levinson et al., Litigating Major Automobile Injury and Death Cases § 18.1 (2018) (registration required). Pretrial argument also will avoid inviting the jury’s ire for letting them cool their heels while the parties argue the issue.
  • Gaining pretrial advantage. You can begin to educate and persuade the judge regarding the merits of your case by thoughtfully and persuasively briefing the admissibility of a particular piece of evidence. Filing a motion in limine, when merited, therefore provides an opportunity to present support for your case and gain favor (even if the evidence is not ultimately admitted). It also may give you the opportunity to learn your opponent’s plans in advance of trial and thus enable you to develop stronger responses.
  • Preserving an argument for appeal. Motions in limine help preserve the question of admissibility for appeal without requiring you to make a detailed objection at trial. See Fed. R. Evid. 103(b); United States v. Parodi, 703 F.2d 768, 783 (4th Cir. 1983) (to preserve for appellate review an evidentiary objection, objection must be specific, timely, and of record). To the degree there are multiple reasons to exclude or admit evidence, a detailed motion in limine preserves your objection on all appealable grounds. Examining motions in limine also helps you determine appealable issues. Keep in mind that if the factual circumstances or grounds for admissibility change, a safe practice would be to reassert your objection.

Why Not File a Motion in Limine?

Despite the many potential benefits, motions in limine are not always appropriate or helpful. As with any litigation tactic, there are potential drawbacks to filing motions in limine that you should weigh carefully before you begin drafting, such as the following:

  • Irking the judge. Many judges disfavor motions in limine and will place limits or wait to rule on such motions until closer to trial. Filing voluminous, unmerited, frivolous, or unnecessary motions in limine will not win you any points with the judge. Even when merited, your motion in limine may not be heard or granted by a judge who disfavors them.
  • Showing your hand. Filing a motion in limine can reveal a great deal about your trial strategy. This gives the opposing side time to develop a theory for the exclusion of the evidence or, if the evidence is admitted, additional time to develop a response for trial. You also may draw attention to information your opponent did not previously know or arguments he or she had not considered, providing your opponent the opportunity to strengthen his or her case.
  • Wasting your chance. If the judge denies or delays ruling on your motion in limine, there is a risk he or she will be less inclined to admit the evidence later, even if circumstances have changed or facts have developed that may strengthen your position. If the facts supporting your motion in limine have not been fully developed, consider waiting until they come out at trial to raise the issue. Similarly, a trial judge often is not familiar with the case or the evidence that has been developed prior to trial. In this situation, the judge may be more inclined to deny the motion or defer ruling on it until later, when he or she better understands the facts and issues. Although perfectly acceptable, this reduces the benefits of filing the motion in limine while increasing the potential harm.

How to Improve Your Chances of Success?

In each instance where the evidence meets the threshold to justify a motion in limine, you must evaluate the risks associated with filing the motion within the context of your duty to your client to prevent harmful evidence from coming out at trial. You can mitigate or avoid many of these risks through careful planning. Here are some tips to keep in mind that may improve your chances of success when filing a motion in limine:

  • Comply with applicable rules. At a minimum, you should ensure that you follow all applicable state and local rules when filing a motion. Many states’ body of civil rules govern the filing of motions in limine. Rules 7.1 and 7.2, of the Arizona Rules of Civil Procedure, for example, set forth requirements regarding good-faith consultation, timing, and responsive filings. Local rules and your assigned judge’s protocols and preferences (often found on the court’s website) also may address issues related to motions in limine.
  • File only when it is truly merited. Raise only those issues that are important to the merits of your case, and file only when it would be strategically beneficial to resolve key issues before trial. You can damage your credibility with the judge and dilute your stronger arguments by filing frivolous motions related to evidence that is unlikely to be offered or mundane motions, such as those seeking to preclude the generic violation of the Rules of Evidence.
  • Ensure a clear ruling. A well-written motion in limine should narrowly tailor any request for relief and identify with exactness the specific evidence, testimony, or statements it seeks to exclude, allow, or limit. Not only is it easier for the judge to deny a request for vague or uncertain relief, but an opposing party may be able to reinterpret or mischaracterize the ruling at trial if the underlying motion was vague or ambiguous. In addition, an evidentiary ruling is not always final, and defects in admissibility can be cured at trial. For example, a party may “open the door” to evidence it earlier sought to have excluded, or it may develop a foundation for evidence that had none previously. To address these circumstances, make sure your motion contains explicit grounds for any evidentiary ruling so you can raise the issue later, if appropriate. Finally, as a practical matter, referencing specific exhibits or Bates numbers and numbering your motions consecutively (in addition to using descriptive titles) will ease the burden on yourself and the trial court or court on appeal.
  • Propose alternative relief (when appropriate). Unless you are certain you will prevail, it may be helpful to provide the court alternatives to simply granting the relief requested. For example, if the court is not inclined to admit your proffered evidence, request a ruling that it will be admitted if the other side “opens the door.” Similarly, if evidence may be inadmissible on certain grounds but admissible for other purposes, request a limiting instruction to the jury.
  • Avoid seeking dispositive relief. When a motion in limine goes to a critical element of a party’s claim or defense, it may be perceived by the court as a surreptitious motion for summary judgment. This perception is more likely when the motion in limine is overly broad or lacks citations to the appropriate evidentiary authority. In that event, granting such a motion may constitute error unless the rules governing the timing and legal standards of summary judgment motions are met. It therefore is important to keep the parameters of the respective motions clear. For example, a Daubert motion to exclude an expert may be fatal to the other side’s claim (notably in medical malpractice cases). A Daubert motion thus should address only the evidentiary issue, based on proper authority. If and when you prevail, you can use the evidentiary ruling as a basis for your dispositive motion.

Sources for and additional information on this topic can be found in the following: Schwartz Hannum PC, “Motions in Limine: When to File, and How to Win,” Legal Updates, June 2017; Beth S. Rose, “Dispositive Motions in Sheep’s Clothing: Decision Every New Jersey Practitioner Needs to Know,” Nat’l L. Rev., Apr. 13, 2016; Timoney Knox, LLP, “On the Threshold: The Five Most Effective Motions in Limine in Any Coverage Dispute,” For the Defense, Oct. 2015; Jeffrey A. Cohen, “Motions in Limine: Uses, Abuses, and Pitfalls,” Carltonfields.com, Mar. 28, 2013; Andrew Brasher, “Simple Steps Go a Long Way: Advice on Motions in Limine,” DRI’s For the Defense Writers’ Corner, Jan. 2012.

Conclusion

Motions in limine can play a key role in any litigation strategy and can help you ultimately prevail at trial. Knowing that they may be used offensively as well as defensively, however, is only half the battle. Making the effort to craft a thoughtful and strategic motion, aimed at achieving a specific goal, will greatly improve your chances of success (on the motion and in the litigation). Such motions can not only help you execute your plan for the litigation but also reveal your opponent’s strategy and help you gain favor with the judge, among other benefits. When used appropriately, a motion in limine is a weapon in every attorney’s arsenal that should not be overlooked.

Sarah E. Epperson is with Jennings, Strouss & Salmon, P.L.C., in its Phoenix, Arizona, office.


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