An Ounce of Prevention . Motions in Limine in Kansas State and Federal Courts
| Publication year | 1999 |
| Pages | 36 |
68 J. Kan. Bar Assn. November/December, 36 (1999). AN OUNCE OF PREVENTION . MOTIONS IN LIMINE IN KANSAS STATE AND FEDERAL COURTS
November/December, 1999
Copyright (c) 1999 by the Kansas Bar Association; Robert W. Parnacott
In limine--On or at the threshold; at the very beginning; preliminarily. Any motion, whether used before or during trial, by which exclusion is sought of anticipated prejudicial evidence. [FN1]
*37 Introduction
The prejudicial effect of some evidence can be so great that any mention of the subject in front of a jury cannot be cured by any jury instruction or admonition from the trial judge. [FN2] Faced with the prospect of incurable prejudice, an attorney's best weapon against this prejudice is to obtain the court's ruling prohibiting even the merest mention of the evidence prior to trial. The motion in limine accomplishes this goal. Although exclusion of evidence is the primary reason, it is not the sole reason for a motion in limine; other uses for this motion will be mentioned. The purpose of this article is to provide the practitioner with a guide regarding motions and orders in limine. Federal and state statutes, rules and caselaw regarding motions and orders in limine will be covered.
The origin of the phrase "motion in limine" is not clear. These motions do not appear to have been employed, at least by that name, prior to the 1920s. [FN3] This phrase is not found in the federal or state civil procedure statutes or rules. [FN4] Use of motions in limine may have evolved from the motions employed to suppress illegally obtained evidence in criminal proceedings. [FN5] "[T]he question to ask is not whether to make a motion in limine, but which ones to make." [FN6]
The court's authority to grant these motions and issue orders in limine is inferred from the federal and state rules of civil and criminal procedure. [FN7] For example, both the state and federal rules of evidence allow the court to make an inquiry into the admissibility of evidence outside the presence of the jury. [FN8] Also, both the state and federal rules of civil procedure provide for pretrial rulings regarding any matters that will aid in the disposition of the litigation, including rulings on the admissibility of evidence. [FN9] Similar authority for pretrial rulings on evidence are found in the rules of criminal procedure. [FN10]
Motions in limine are used primarily to shield the jury from unfairly prejudicial evidence. [FN11] Without a pretrial ruling excluding this type of evidence, the right to a fair and impartial trial could be compromised. [FN12] However, the motion in limine can serve other needs. For example, a party can request a pretrial ruling regarding the admissibility of evidence, "which the court may provide at its discretion to aid the parties in formulating trial strategy." [FN13] The motion may be used to prevent a party from asserting a legal theory or defense without any basis in the evidence, although a motion in limine should not be used to foreclose a valid defense to criminal charges. [FN14] The motion also can be used to prohibit opposing counsel from employing inflammatory or inappropriate tactics at trial. [FN15] The possible uses of a motion in limine are essentially "limitless," [FN16] subject only to the attorney's "analytic skill and strategic ingenuity." [FN17]
Filing motions in limine
By raising an issue in a pretrial motion, the party can obtain a court ruling without pressure to quickly decide the issue during the heat of the trial. [FN18] The judge should have time to review authorities relied on by the parties, conduct additional research, hear oral argument on the matter, and then issue a reasoned decision. [FN19] The court's ruling on a motion in limine may affect settlement [FN20] or plea negotiations. [FN21] Although rarely used in bench trials because the prejudicial effect of evidence is not as great a problem, it may still be useful in these proceedings for obtaining guidance from the court. [FN22] Obtaining pre-trial rulings on evidentiary questions cleans up the trial process by streamlining and shortening the trial. [FN23]
Motions in limine are useful to the litigator because they aid in planning and organizing trial activities, including the order of proof and the questioning of witnesses. [FN24] These motions may be used defensively, to exclude evidence that is damaging to a party's case, or offensively, to exclude evidence that strengthens a claim or defense of the opposing party. In assessing whether a motion in limine should be filed, the attorney should analyze both parties' claims or defenses from an evidentiary perspective. The attorney should then identify specific items of evidence that are of doubtful admissibility or which have substantial prejudicial
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effect that clearly outweighs any probative value. [FN25] Before filing the motion, it may be appropriate to explore with opposing counsel whether a stipulation can be reached for the admissibility or exclusion of the evidence. [FN26]
The attorney considering filing the motions in limine should refrain from drafting an avalanche of limine motions. Too many may overwhelm the court, leading to postponed decisions until trial. In the meantime, the other side has been given advance notice of the opposing trial strategy. Some attorneys prefer to file a single motion in limine addressing a number of separate evidentiary issues. Other attorneys file separate motions for different types of evidence at issue. If a court has a page limit on the length of a response, a motion in limine raising multiple issues may make it harder for the opposing party to respond adequately to the issues raised.
The attorney should give careful consideration to what evidence warrants a pretrial ruling, and what evidence should be objected to at trial. [FN27] Evidence obviously inadmissible, substantially prejudicial, or requiring detailed analysis or argument to establish its inadmissibility is a prime candidate for a motion in limine. Evidence that, if excluded or admitted, would exert significant pressure on either side in a civil case to settle, or to plead out in a criminal case, should also be raised before trial. On the other hand, evidence that is not significantly prejudicial, or that involves issues that can be easily argued and decided at trial, should be addressed at trial.
Timing of filing motions in limine is an important consideration for the attorney. The court, in its pretrial order, may set deadlines for filing these motions. If no deadline is set, any motion in limine should be filed and ruled on before voir dire. Otherwise, if the order is not entered until after the jury is picked or opening arguments are given, the evidence may find its way into the jury's awareness, making the order almost useless. A motion involving complex evidentiary issues should be filed early enough to give the court a chance to review the matter with the necessary detail. [FN28] Motions in limine may also be used in conjunction with motions for summary judgment to eliminate evidence from consideration in ruling on the request for summary judgment. [FN29]
Because no express statutory or rule-based authority exists for motions in limine, these motions have no express statutory or rule-based requirements. The following guidelines for motions and orders in limine apply in Kansas state court. A written motion should specifically identify the material or evidence that is the subject of the motion. [FN30] "The motion should not be general in scope." [FN31] Any order in limine entered "should be temporary in nature." [FN32] The court may take the motion in limine "under advisement, reserving the right to rule upon the matter when it arises at trial." [FN33] If the motion in limine is taken under advisement, "the matter should not be raised except in the absence of the jury." [FN34]
Regardless of whether the case is before a state or federal court, attorneys should also be aware of any individual judge's requirements, that may apply to motions in limine. Judge Sam Crow, of the Kansas federal district court, has suggested the following guidelines be followed. Motions in limine filed prior to the status conference may be summarily denied by the court "unless the movant shows the necessity for an earlier ruling." [FN35] The motion should "specify with as much particularity as possible the evidence sought to be excluded in limine." [FN36] The motions and responses should include a supporting memorandum stating any argument and authorities. [FN37] Motions in limine will be decided without oral argument, unless the court orders otherwise. [FN38] Judge Thomas Marten, of the same court, asks that motions in limine be filed at least one week prior to the in limine conference. [FN39]
Format for motions in limine
Motions in limine are subject to the basic requirements set out in statutes and rules for all motions, including the prohibition against filing frivolous motions. [FN40] The general format should include an introductory paragraph, which states the purpose of the motion, clearly and specifically identifies the matters sought to be excluded or admitted, and states the relief requested. In Kansas state court, because motions in limine do not affect the merits of the matter, the motion need not be accompanied by a separate memorandum setting out the authorities relied on in support of the motion. [FN41] Kansas federal district court local rules, however, require a separate brief or memorandum in support of the motion. [FN42] If a hearing is requested, the motion should include a notice of hearing. In federal court, leave of the court is required prior to setting the matter for hearing. [FN43]
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