The Motion in Limine: Use in Domestic Relations Cases
| Publication year | 2014 |
| Pages | 47 |
| Citation | Vol. 43 No. 3 Pg. 47 |
By Todd A. Stahly.
Family Law
The Motion in Limine: Use in Domestic Relations Cases
Family Law articles are sponsored by the CBA Family Law Section to provide information to family law practitioners. Articles focus on practice tips and discussions of current issues within the realm of family law.
Coordinating Editors
Patricia A. Cooper, Denver, of the Law Office of Stephen J. Harhai—(303) 329-8300, tcooper@harhai. com; Meredith Patrick Cord, Colorado Springs—(719) 452-5343, meredith.patrickcord@judicial.state, co. us
About the Author
Todd A. Stahly is the owner of Stahly LLC, and his practice focuses solely on domestic relations law—(303) 797-2900, todd@stahlyllc.com.
This article provides an overview of motion in limine use in the domestic relations context as a useful tool to focus and narrow issues, aid in settlement, and handle complex or prejudicial evidentiary issues before trial.
Domestic relations practitioners are frequently confronted with complicated evidentiary issues or prejudicial facts that can be a distraction from the important issues during litigation. This article provides an overview of ways to handle those issues through a motion in limine.
History of the Motion in Limine
The motion in limine first made its appearance in 1933 in a case involving a lawsuit brought by an individual, Bradford, against the Birmingham Electric Company.[1] In Bradford, a motion was filed before trial to determine whether character evidence would be offered, which Bradford opposed.[2] The trial court refused to rule on the preliminary motion.[3] The appeal of the issue was unsuccessful because the appellate court reasoned: "[N]or will a trial court assume the right, in advance of the offering of any evidence, to 'instruct' an attorney what evidence he may introduce on the trial of a cause."[4] The court did not condone such a motion because it could not cite any "rule of law or of practice . . . which authorized the procedure."[5] Since Bradford, the view of the motion in limine has evolved and such motions are now routine in all types of litigation, both civil and criminal.
Motion in Limine Defined
"Motion in limine" is defined as "a pretrial request that certain inadmissible evidence not be referred to or offered at trial."[6] The elements of a motion in limine to exclude evidence are:
l. The opponent states a belief that the proponent possesses and will offer certain evidence at t rial.
2. The opponent states the intent to exclude that evidence.
3. The opponent briefly states the ground on which the evidence is inadmissible.
4. The opponent explains why an ordinary trial objection would provide inadequate protection.
5. The opponent presents the legal argument in favor of the motion.[7]
The basis for the objection must be stated with specificity.[8] Specificity permits the trial court to "accurately evaluate the legal issues and . . . [enables] . . . the appellate court to apprehend the basis of the objection. . . ."[9]Colorado Rule of Evidence (CRE) 103(a)(1) requires statement of the "specific ground of [the] objection, if the specific ground was not apparent from the context."[10]
For example, expert A wishes to provide his opinion about Mother's parenting skills in a parental responsibilities trial. Expert A was a family therapist for the family three years ago and met with the family four times over the course of two months and believes, based on those meetings, that Mother's parenting abilities are deficient and she should not have significant parenting time. Further, expert A was never endorsed by Father in his witness disclosures as required under CRCP 16.2(e) (3).[11]
A motion in limine directed at exclusion of expert A should state as many specific reasons supporting the exclusion as possible, such as:
1) expert A has no actual personal observations of either parent with the child, therefore, his opinion is not based on personal knowledge under CRE 901;
2) expert A's opinion is based on only four meetings three years ago, which is not usual data that such an expert would normally rely on in the field under CRE 703;
3) expert A's opinion is prejudicial under CRE 403, if allowed, because it is made under the guise of an expert but there is no expertise involved under CRE 702;
4) expert A was not disclosed before trial, as required by CRCP 16.2(e)(3), and the lack of disclosure is prejudicial to Mother;
5) expert A's opinion is clearly not rebuttal evidence, as defined under Colorado law, and the evidence is not directed at counteracting a claim of surprise because his report was prepared before trial.[12]
Setting forth all possible reasons for exclusion with specificity and clear citations increases the likelihood that the motion will be effective for the client and preserves a better record in the event of an appeal.
A motion in limine "directed at a 'broad array' of evidence does not constitute an objection pursuant to CRE. 103(a)(1)."[13] Using the above example, if a motion in limine merely requested exclusion of all nondisclosed witnesses, the trial judge or the appellate court might find that the objection was overly broad and exclusion of expert A is not appropriate under the circumstances. Instead, a motion in limine directed at exclusion of expert A and listing all specific reasons exclusion is appropriate ensures that the objection complies with CRE 103(a)(1).[14]
In Colorado, "specific statutes are not required to authorize a motion in limine. The underlying power of the trial court to pass on the admissibility of evidence is inherent."[15] In the domestic relations context, CRCP 16.2(c)(4)(A) specifies what motions may be filed without advance permission of the court, and provides that a motion in limine may be filed "with the court at any time."[16] However, there is no requirement that a motion in limine be filed.[17] In the event a motion in limine is not filed, the evidentiary objection must be made verbally before the start of trial or during the trial contemporaneous with the evidence being offered.
Uses of a Motion in Limine
The decision of whether and when to file a motion in limine in a domestic relations case is subjective and based on the judgment and strategy of the proponent. When evaluating whether to file a motion in limine, it is important to consider the possible benefits and detriments to bringing the evidence to the attention of the court and the opposing party in advance of trial.[18] For example, if a motion in limine is not successful, the evidence that is subject to the motion may be illuminated for the opposing attorney who may not have realized the potential use of that evidence before the filing of the motion in limine.[19]
Possible benefits of using a motion in limine include: (1) isolation of complicated evidentiary issues; (2) discovery of the opposing party's theories, or lack thereof, as to certain matters; (3) requiring the opposing party to make decisions and take a position; (4) preservation of the record for appeal;and (5) obtaining favorable settlement of the case. [20]
If the evidence subject to the motion in limine presents a complicated issue requiring lengthy explanation and argument, a motion in limine allows counsel to fully explain the issue in writing, so the trier of fact will have a chance to thoroughly review and analyze the issue before trial. This approach also allows considerable research to be provided supporting the position, which may be more effective than attempting to address the issue during a verbal objection in the midst of trial.
Use of the motion in limine can be very effective in discovering the opposing party's case surrounding the evidence in question.[21] A properly drafted motion in limine can be designed to probe specific parts of the opposing party's case by forcing the opposing party to "disclose not only what prejudicial evidence he may intend to offer, but also the legal theory on which he relies as establishing the relevance of the evidence."[22] The result of such a probe enables further trial preparation and preparation of rebuttal evidence, if necessary.[23]
For example, in a post-decree maintenance modification where Wife's income is an issue, Wife's attorney discovers that Husband intends to offer evidence that Wife embezzled money from her employer more than five years ago. Wife's attorney believes the reasons for offering the evidence are purely to...
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