Chapter 2 - § 2.6 • PRESERVATION FOR APPELLATE REVIEW

• Jurisdiction: Colorado

§ 2.6 • PRESERVATION FOR APPELLATE REVIEW

Colorado

➢ Timing. There is no meaningful distinction between the effect of a pretrial ruling on the admissibility of particular evidence resulting from a motion in limine and a pretrial ruling on a specific objection to the admissibility of particular evidence made as a result of a pretrial conference insofar as the non-prevailing party's right to have that ruling reviewed on appeal is concerned. Where the motion in limine contains objections to the admission of specific items of anticipated evidence, the objection is considered timely for purposes of preservation of error. Uptain v. Huntington Lab, Inc., 723 P.2d 1322, 1330 (Colo. 1986) (en banc), overruled in part as stated in Wagner v. Case Corp., 33 F.3d 1253 (10th Cir. 1994).

➢ Timing. The filing of motions in limine concerning objectionable evidence is sufficient to preserve an objection to the evidence, so that evidentiary arguments on appeal are not waived if the appealing party fails to object contemporaneously when objectionable evidence is introduced at trial. See Bennett v. Greeley Gas Co., 969 P.2d 754, 758 (Colo. App. 1998).
➢ Timing. The filing of a motion in limine is sufficient to preserve the matter for appellate review. A contemporaneous objection at the time of trial is not necessary. Banning v. Prester, 317 P.3d 1284, 1290 (Colo. App. 2012).

Practice Pointer
In order to avoid having to object at trial, the lawyer should consider whether to file specific motions in limine on potentially objectionable evidence based upon the rulings in Uptain and Bennett. However, the motion in limine must contain specific objections to specific items of anticipated evidence. Uptain v. Huntington Lab, Inc., 723 P.2d 1322, 1330 (Colo. 1986); cf. Higgs v. District Court, 713 P.2d 840, 859 (Colo. 1985) (where pretrial motion in limine was directed to a broad array of evidence, such motion in limine did not constitute a timely objection for purposes of CRE 103(a)(1)).

➢ General. Challenge to toxic tort plaintiff's reference in closing argument to defendant as a big company with very large resources was preserved for review, even though defendant did not object during closing; trial court had previously granted defendant's motion in limine to avoid any reference to defendant's profit or financial condition. Salazar v. American

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