Motions In Limine: When To File, And How To Win
When defending the British soldiers accused of committing murder during the 1770 Boston Massacre, John Adams famously argued that “[f]acts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” The prosecution’s key witnesses offered little more than unreliable eyewitness testimony playing on the growing public sentiment against the British government, which Adams rebutted by pointing to the facts that were in evidence concerning the events of that evening.
In a climate teeming with struggle, and against long odds, Adams was successful in obtaining an acquittal for six of the eight soldiers on trial. Ever since, this trial has stood as a lesson to lawyers on the importance of developing the factual record in a way that supports your theory of the case.
Nature Of Motions In Limine
One way for a trial lawyer to proactively assert control over the facts that will be presented to the jury is by thoughtfully utilizing motions in limine. A motion in limine is a procedural mechanism that allows litigators to seek to exclude certain evidence from being presented to a jury – typically evidence that is irrelevant, unreliable, or more prejudicial than probative.
Importantly, motions in limine are generally made before a trial begins, and always argued outside the presence of the jury. Thus, a motion in limine allows key evidentiary questions to be decided without the jury present and, if the motion is granted, will preclude the jury from ever learning of the disputed evidence.
While the potential topics of motions in limine are virtually without limit and will vary greatly depending on the specific evidentiary issues in a given case, below are several examples of motions in limine that are commonly filed by employer-defendants in employment cases:
- Motions to preclude evidence of similar claims previously brought against the employer by other employees;
- Motions to preclude evidence that relates only to claims dismissed on summary judgment;
- Motions to preclude evidence of alleged employee or manager misconduct that is unrelated to the unlawful conduct being alleged;
- Motions to preclude evidence of lost wages damages where an employee voluntarily resigned from employment or failed to mitigate his or her damages;
- Motions to preclude treating physicians from testifying as to medical opinions or diagnoses unless they are properly certified as expert witnesses; and
- Motions to preclude evidence of the employer’s financial condition if punitive damages have not been sought.
As with any litigation tactic, there are potential drawbacks to filing motions in limine. Most of those, however, can be avoided with strategic and thoughtful planning. Here are some tips to keep in mind when considering potential motions in limine:
- Carefully select issues of importance.
- Focus on expert witnesses and damages.
Motions in limine are a commonly used tool for raising evidentiary issues relating to expert witnesses and damages. Motions in limine concerning expert witness testimony, which are known as Daubert motions, can seek to limit or exclude expert testimony that is not supported by sufficient facts or data, not based on reliable principles or methods, or not relevant to the issues on trial. In certain cases – most notably, medical malpractice cases – a successful Daubert motion to exclude a medical expert can end the case.
Similarly, a successful motion in limine to preclude or limit categories of potential damages can fundamentally change the trajectory of a case. For example, an employer that is successful at precluding a former employee from recovering lost wages on the basis that the employee resigned, or failed to adequately mitigate damages, has significantly reduced its exposure in the event of an adverse verdict.
- Know your judge’s preferences.
Before you expend the time to prepare comprehensive motions in limine, learn what you can about your judge’s preferences for such motions. Judges have a great deal of latitude in how they handle evidentiary matters, and no two are exactly the same. There also may be procedural requirements that are unique to your judge. Some judges require motions in limine to be briefed well in advance of trial and heard at a pre-trial conference, while others may prefer to hear them on the first day of trial. Some judges want thorough briefing in support of in limine motions, while others prefer to have succinct submissions (or may even want to just hear them orally). Be sure to learn everything that you can about how your judge prefers to handle motions in limine, and ensure you comply with those practices.
- File motions you can win.
A motion in limine should not be filed unless you believe there is a high likelihood of winning. In addition to potentially catching the ire of the court with a frivolous motion, you could be giving your opponent insight as to the evidentiary issues you consider to be critical to your case. For example, if you are seeking to exclude evidence that calls into question the credibility of your star witness, you may be providing your opponent a road map as to how to most effectively leverage that evidence against your witness. You may also unwittingly include arguments in your motion that your adversary had not considered, and that he or she may adopt after reading your papers. Be sure that the motion is important and that you are confident that it has a good chance to succeed before you file it.
- Understand and clarify the court’s rulings.
Rulings on evidentiary motions are not always final, especially when the defect causing the evidence to be inadmissible can be cured. For example, if the court holds that a piece of evidence is inadmissible because the party proffering the evidence cannot establish the proper foundation, that ruling should change the moment a proper foundation is laid. If you are on the losing side of an evidentiary ruling, be sure you understand any conditions to the ruling so that you can take any necessary steps to get your evidence admitted. If evidentiary orders are not properly conditional, request the court to make the conditions explicit on the face of the order.
As you prepare for trial, motions in limine should be a key part of your strategy. Success on these motions will aid you greatly as you attempt to create a favorable record before the jury. In many instances, success on key motions in limine can even facilitate a favorable settlement before trial. If you are uncertain about whether, or how, to favorably position motions in limine as you approach trial, consult with legal counsel who is experienced and familiar with your court and judge.