The Civil Litigator
| Publication year | 1981 |
| Pages | 2287 |
1981, September, Pg. 2287. The Civil Litigator
A lawyer, in fulfilling his professional responsibilities, is guided by the Code of Professional Responsibility. The American Bar Association Code of Professional Responsibility D.R. 7-106 contains certain guidelines concerning the trial conduct of a lawyer.
D.R. 7-106 contains the following prohibitions: a lawyer shall not (1) "state or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence" [D.R. 7-106(C) (1)]; (2) "ask any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person" [D.R. 7-106 (C)(2)]; (3) "intentionally or habitually violate any established rule of procedure or of evidence" [D.R. 7-106(C)(7)].
Even so, some trial lawyers ask questions which may prejudice the jury. Usually, such tactics and the lawyers involved are reprimanded by the trial court. Sometimes, when the results at trial are adverse to a party victimized by such tactics, the injustice is corrected on appeal. The usual case, however, is that a "curative measure" such as a cautionary jury instruction is given to avoid error and, on appeal, the error at trial is held to be harmless. As a practical matter, a cautionary instruction frequently amplifies the improper evidence and the jury probably does not disregard it. Therefore, even though the legal error has been corrected, there still remains the psychological effect that the mention of the evidence has upon the jury.
Clarence Darrow recognized the problem when he wrote:
Few judges are psychologists, or they would realize that nothing can be stricken out of a human consciousness after being once let in. Judges seem to be quite unaware that it is a hard task to put anything into the average mind, and, once in an impossible one to take it out.... If, after days or weeks or months of taking testimony, the judge decides that some item was not [admissible], he cooly tells the jury that they are to ignore this, that, and the other thing, probably without at all explaining his meaning of "ignore." The jury is so instructed, regardless of the fact that no one is able to know all the specific things that enter into his opinion, or take away from an opinion already
formed, any of the special facts, circumstances, guesses or prejudices that go into its making.(fn1)
Additionally, all of us that try cases have been faced with the serious dilemma when opposing trial counsel makes an improper remark or asks an improper question. We know that if we raise an objection, we may sound as if we are trying to keep evidence from the jury. If we fail to raise timely and specific objections, they are usually deemed waived.(fn2) Many times, an inappropriate statement is inadvertently made. However, such problems may be averted by using a motion in limine.
The motion in limine seeks either a preliminary or final evidentiary ruling, before trial has begun or during trial, but before the evidence in question is proffered.
The words in limine mean "in or at the beginning," "on the threshhold," or "at the outset."(fn3) The motion, therefore, is one that is made before the trial has begun. Bradford v. Birmingham Electric Co.(fn4) decided in 1933, is probably the first civil case in which a motion in limine was used. This case was an action for personal injuries and plaintiff's counsel before trial moved to exclude any reference to his client's alleged immoral conduct.
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