Motions in Limine

AuthorLeonard H. Bucklin
17. Motions in Limine
The section keeps handy both:
– your in limine motions to be made just before or during the trial, and
– the adverse party’s in limine motions to be heard just before or during trial.
Remember, a motion can be made in limine, at any time, to admit items into evidence,
just as an in limine motion can be used to exclude evidence. “In limine” simply means
“at the threshold (of the case or evidence)”; it does not mean “to limit or exclude.”
However, most judges and attorneys are not accustomed to calling a motion to admit
into evidence an “in limine” motion.
In most of your cases, you should be prepared with two, perhaps three, motions to
make immediately before trial. This assumes that the court has not issued an order
requiring these motions to be made at some other time.
1. A general motion that covers the usual items that should be of concern to you
and that can be avoided by a motion in limine. E.g., the motor vehicle arrests of
plaintiff or the insurance coverage of the defendant.
2. A specific motion on any special point of evidence that is helpful or crucial to
your case (either to get it admitted into, or excluded from, evidence). E.g., that
the 2x3-foot enlargement of the photo of the hole in which plaintiff stumbled be
admitted into evidence, so that you can show it to the jury in opening statement.
3. A Daubert-style motion, ready to be used as needed, to exclude the opposing
expert’s opinion testimony.
Motions before trial to block adverse evidence or behavior have assumed great
importance in the last few years. Trial courts have two different patterns for how they
hear these motions. One group of judges sets aside a day before the trial to hear and
determine all motions in limine. Even if your trial judge belongs to this first group, you
need to keep a copy of your and your adversary’s motions in limine permanently in
your trial notebook, with markings indicating how the judge ruled. Time constraints
usually prevent written orders, and your notes of the ruling need to be your guideposts.
During trial you will need to determine whether your or your adversary’s proffered evi-
dence violates the judge’s pretrial ruling, and you will need to immediately show the
judge at sidebar the motion and ruling. That is easily accomplished if you have a
marked copy of the motion in your trial notebook.
The second and probably largest group of judges handles motions in limine in the first
minutes of a trial. It is a rush and hurry matter and, again, you need your and your adver-
sary’s Daubert motions and motions in limine ready to be marked with the judge’s rulings
as she makes them. The accompanying standard-style motions in limine should help.
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