Motions in Limine
A motion in limine seeks a preliminary ruling from the trial court about whether specific evidence will be admitted at trial. But, as all litigators know, the trial court’s decision to grant a motion in limine just means that counsel must approach before introducing the evidence. Often, counsel hope that a favorable ruling will streamline trial preparation and keep objectionable material out of the jury’s earshot. But what if the motion is denied—or only partially granted? Does the unsuccessful movant automatically preserve that issue for appellate review?
The Fifth Circuit generally says no. Even if the trial court issues a definitive ruling on a motion in limine, the party seeking to exclude evidence must still object again when the evidence is offered at trial. In First United Pentecostal Church v. Church Mutual Insurance Co., the Fifth Circuit reaffirmed that a pretrial motion alone is not enough to preserve error under Federal Rule of Evidence 103(a). 119 F.4th 417, 426 (5th Cir. 2024). Instead, counsel must renew the objection to give the trial court one more chance to address the issue in context. The Fifth Circuit has long held this view. In Collins v. Wayne Corp., the court explained that a motion in limine, if denied, provides insufficient notice of the error once trial is underway. 621 F.2d 777 (5th Cir. 1980). A timely trial objection ensures the judge (and opposing counsel) can respond in real time, preventing any prejudice before the jury hears the evidence.
The Seventh Circuit, by contrast, allows for a bit more flexibility. In Wilson v. Williams, the court held that a definitive in limine ruling could, in many circumstances, preserve an issue for appellate review without a further trial objection. 182 F.3d 562, 563 (7th Cir. 1999) (en banc). But the court cautioned that definitive means truly definitive—where the trial judge unambiguously commits to a final evidentiary ruling. If, however, the trial judge indicates that further consideration might be needed, counsel must renew the objection at trial or risk forfeiture. Moreover, if the dispute concerns how evidence is used rather than a simple yes-or-no question of admissibility, the party must still object at trial.So, more flexibility—but not carte blanche.
Arguments Relegated to Footnotes
A second trap for the unwary is the temptation to tuck arguments into footnotes. Good brief‐writing often demands brevity, but does stashing an argument in a footnote preserve it for appeal?
The Fifth Circuit is a hard no. In Smith v. School Board of Concordia Parish, the Fifth Circuit reiterated that arguments “relegated to a footnote” are generally not considered “properly raised.” 88 F.4th 588, 596 (5th Cir. 2023). If an appellant fails to present the argument clearly in the body of the brief—complete with relevant authority—then the argument is forfeited. This rule reflects the court’s desire for clarity: if an argument is important enough to merit consideration, it belongs in the main text, clearly labeled and supported. Some district courts in the Fifth Circuit have taken this one step further: no footnotes are allowed at all.
Similarly, the Seventh Circuit disapproves of “footnote-only” arguments. In United States v. Howard, the defendant mentioned a possible error in a footnote but did not develop it as an independent ground for reversal. 67 F.4th 876, 880 (7th Cir. 2023). The court of appeals refused to treat that fleeting reference as a preserved argument, citing Moriarty ex rel. Local Union No. 727 v. Svec for the proposition that claims “raised only in footnotes” are forfeited on appeal. Moriarty, 429 F.3d 710, 722 (7th Cir. 2005).
In both circuits, these rules are a reminder that arguments important enough to preserve are also important enough to go into your main text. Assume no one is reading footnotes and you’ll be safe.
Preservation of Foreclosed Arguments
What if a party’s strongest argument in the district court is plainly foreclosed by existing circuit precedent? Must the party nonetheless raise it in the district court to preserve it in case the precedent changes?
The Fifth Circuit often (but not always) answers yes. Litigants cannot rely on a “futility” exception; they must object to preserve the issue, even when controlling precedent says the objection will fail. In Jimenez v. Wood County, Texas, the court discussed Johnson v. United States, 520 U.S. 461 (1997), which likewise refused to create a futility exception to plain-error review. Jiminez, 660 F.3d 841, 846 (5th Cir. 2011), There, despite near-uniform precedent at the time of trial, the U.S. Supreme Court held that raising the issue in the district court was still required. The Fifth Circuit hews to that logic: compliance with many preservation rules is mandatory, regardless of controlling precedent.
Once again, the Seventh Circuit is more forgiving. In Hively v. Ivy Tech Community College of Indiana, and in many cases citing Hively, the Seventh Circuit said that the most common reason to forgive district court forfeiture is where the district court is “powerless to overturn precedent.” Hively, 853 F.3d 339, 351 (7th Cir. 2017) (en banc); see Allen v. City of Chicago, 865 F.3d 936, 944 (7th Cir. 2017) (forgiving waiver appropriate to address arguments that “would have been foreclosed in the district court by binding precedent”).
Conclusion
In short, the differences between the Fifth and Seventh Circuits described above highlight the importance of knowing your jurisdiction’s specific requirements. For practitioners who appear in multiple circuits, careful attention to these procedural nuances can mean the difference between preserving and forfeiting crucial arguments on appeal.
