Motions in limine are an integral part of pretrial preparations. However, new lawyers tasked with preparing them for the first time often find them hard to conceptualize. However, any trial lawyer will soon learn that motions in limine are an important procedural tool for clarifying and limiting the scope of an opponent’s case before trial. The opportunity to refine the issues “at the threshold” (the Latin translation of in limine) of trial is an important chance to provide value to your colleagues and your clients.
The deadlines for submitting motions in limine will nearly always be included in the trial court’s pretrial or trial order. That deadline is likely to be set after the completion of fact and expert discovery and will necessarily come after dispositive motions are briefed and perhaps decided. As such, you will most likely be writing motions in limine with the benefit of a fully developed factual record, potentially with certain legal issues narrowed, and with a clear idea of the issues to be tried.
You should start by tracing the claims or defenses that remain to be decided at trial. Review the evidence introduced into the record and pair the evidence to the issues. Any remaining evidence not clearly connected to a claim or defense at issue is ripe for a motion in limine to exclude it as irrelevant under Federal Rules of Evidence 401 and 402 or their state-law equivalents.
Next, determine if any evidence that is relevant to your opponent’s claims and defenses should nevertheless be excluded under Federal Rule of Evidence 403 or its state-law counterparts. This rule permits the exclusion of relevant evidence if it would entail a risk of unfair prejudice, confusion of the issues, misleading the factfinder, or simply being a waste of time. Once you have compiled your Rule 403 evidence, you might also consider adding the evidence you have previously identified as irrelevant under Rules 401 and 402 to your motion to exclude under Rule 403 because irrelevant evidence is obviously a waste of time and would risk confusing the issues or misleading the factfinder. The more rules of evidence supporting the exclusion of any particular piece of evidence you can find, the better.
After identifying the basic factual evidence ripe for exclusion, you can turn to the experts. The Federal Rules of Evidence and their state-law counterparts provide many avenues for excluding an expert’s conclusions and testimony. The first is Federal Rule of Evidence 701, which prevents lay witnesses from proffering expert opinions. If, upon reviewing the depositions or statements taken in the case, you believe a witness who has not been properly disclosed as an expert but is offering expert opinion, then use Rule 701 to argue to exclude such testimony.
Next, look to Federal Rule of Evidence 702, governing expert testimony. Perhaps the most important is Federal Rule of Evidence 702(c), which requires the party proffering an expert to show that the expert’s testimony is based on reliable principles and methods. What is considered “reliable” depends largely on the specific law of each jurisdiction. Still, it is worth reviewing such law and comparing it to the methods disclosed by the testifying expert. If there are grounds for making the argument to exclude the expert under Rule 702(c), it is often worth the attempt.
After considering the expert issues, carefully review the claims and defenses that have been pleaded and argued throughout the case. There may be claims or defenses subject to specific pleading or discovery requirements under the law of the jurisdiction. If you can identify such claims and how those claims may be deficient based on the now-complete record going into trial, a motion in limine to exclude such claims or defenses may help limit the issues before the court or a jury.
You should also carefully review any designated deposition testimony or identified witness statements for issues of reliability or hearsay under Federal Rule of Evidence 802. Hearsay—with its array of exclusions and exceptions—can be a difficult issue to resolve during live testimony at trial, and waiting until the witness is on the stand risks exposing faulty testimony to a jury before an objection can be raised. File a pretrial motion in limine on the issue to reduce these risks whenever possible.
Preparing motions in limine requires a fulsome review of the record and the particular claims or defenses at issue in your case. It allows you to narrow the evidence your adversary can present to the court or jury before testimony or arguments even begin. It also presents you with an opportunity to demonstrate value to your colleagues and your clients. Knowing how to wield motions in limine efficiently and effectively is essential for any aspiring trial practitioner.
