Part Xl In Limine, Trial, And Post-Trial Motions In Limine, Trial, And Post-Trial Motions

• Jurisdiction: New York

Part XL — In Limine, Trial,
and Post-Trial Motions

The Legal Writer continues its series on civil-litigation documents. In this issue, we discuss various motions in limine and the procedure for moving in limine. In this issue and the next, we’ll also discuss trial motions, including motions to dismiss, motions based on admissions, motions for a mistrial, motions for a directed verdict, motions for a continuance, motions to strike testimony from the record, motions to conform the pleadings to the proof, and motions to reopen a case. We continue in the next issue with post-trial motions, including motions for a judgment notwithstanding the verdict and motions for a new trial based on the weight of the evidence.

In Limine Motions

General Information

“In limine” means “at the threshold.”¹⁸⁵⁶ Most practitioners move in limine at the threshold of trial — before trial. But you may move in limine during trial, too, well before the evidence is offered.

Your motion in limine may be made orally or in writing.

Motions in limine are “preemptive motion[s].”¹⁸⁵⁷ In limine motions are meant to prevent the trier of fact from “observing conduct or hearing testimony that is improper and prejudicial.”¹⁸⁵⁸ The function of an in limine motion is “‘to permit a party to obtain a preliminary order before or during trial excluding the introduction of anticipated inadmissible, immaterial, or prejudicial evidence or limiting its use. Its purpose is to prevent the introductions of such evidence to the trier of fact, in most instances a jury.’”¹⁸⁵⁹ Winning an in limine motion will ensure that your adversary doesn’t mention or use that evidence in its voir dire, opening statement, trial, and closing statement.

Aside from excluding evidence, the relief you’re seeking from the court in your motion in limine might also include the following:¹⁸⁶⁰ (1) instructing your adversary to refrain from mentioning prohibited material in your adversary’s voir dire, opening statement, cross examination, or closing statement; (2) instructing your adversary not to introduce evidence in your adversary’s direct case; (3) directing your adversary’s witnesses and experts not to mention prohibited material when the witnesses and experts testify; and (4) ensuring that jurors don’t see or hear the prohibited material.

In your motion in limine, you may also ask the court to allow you to do something, such as “allow your expert [witness] to be present [in the courtroom] during other witnesses’ testimony.”¹⁸⁶¹ Moving in limine to assure that you’ll be allowed to mention and use that evidence later is a proactive measure.

In limine motions are advantageous. Winning a motion in limine will prevent your adversary from talking about or introducing evidence that’s damaging to you.¹⁸⁶² Winning a motion in limine might give you leverage in settling the case.¹⁸⁶³ Moving in limine before trial will give the judge an opportunity to consider the issues in advance, making the judge more inclined to rule for you.¹⁸⁶⁴

Some disadvantages arise in moving in limine. Motions in limine will alert your adversary to a weakness in your case (or in your adversary’s case) that your adversary hadn’t yet considered.¹⁸⁶⁵ Losing a motion in limine will put you in a weak settlement position.¹⁸⁶⁶ And you probably won’t be able to appeal immediately an adverse ruling on a motion in limine.¹⁸⁶⁷

If there’s a mistrial, “rulings on motions in limine are[n’t] binding at the retrial.”¹⁸⁶⁸

Here’s a list of motions in limine.

Expert Testimony

Move in limine to

exclude expert testimony of non-experts; ¹⁸⁶⁹

exclude expert testimony that’s based on unreliable hearsay or on facts not in the record or personally known to the witness; ¹⁸⁷⁰

exclude expert testimony that’s immaterial, irrelevant, misleading, or has no probative value; ¹⁸⁷¹

exclude expert testimony that would be unfairly prejudicial to your client; ¹⁸⁷²

preclude an expert’s testimony, whom your adversary untimely or improperly identified; ¹⁸⁷³

limit the scope of an expert witness’ testimony; ¹⁸⁷⁴

require your adversary to show that its expert’s opinion is recognized as generally accepted in the scientific community — the Frye test; ¹⁸⁷⁵ and

determine that your expert’s testimony is admissible. ¹⁸⁷⁶

Federal Law or Regulation

Move to exclude evidence preempted by federal statute or regulation.¹⁸⁷⁷

Other Complaints or Lawsuits

Move to exclude your adversary from introducing into evidence

other complaints or lawsuits that your client — the plaintiff — initiated; ¹⁸⁷⁸ and

other complaints or lawsuits “on the grounds of lack of similarity, hearsay, or waste of time on collateral issues.” ¹⁸⁷⁹

Include in your motion that you’re seeking to prohibit your adversary from mentioning these complaints or lawsuits during the trial.

Demonstrative Evidence

Move to exclude evidence of “experiments, tests or demonstrations, not similar to [the] circumstances of [your] case.”¹⁸⁸⁰

Administrative Bodies

Move to exclude findings by administrative agencies, especially “when all parties were not present or did not have motivation to thoroughly litigate.” Move to exclude an administrative body’s report that will mislead or confuse the trier of fact.¹⁸⁸¹

Hearsay

Move to exclude hearsay conversations, including statements in newspaper articles or other publications. Move to exclude “[r]eports by investigating authorities containing hearsay, particularly those recorded in witness statements.”¹⁸⁸²

Irrelevant or Prejudicial Evidence

Move in limine to exclude

entries in medical records that aren’t relevant to medical treatment; ¹⁸⁸³

evidence that’s already been decided on a summary-judgment motion; ¹⁸⁸⁴ and

evidence of criminal convictions or personal history if the prejudicial value substantially outweighs the probative value. ¹⁸⁸⁵

In a negligence case, move to exclude evidence of “[s]ubsequent remedial measures, repairs or improvements.”¹⁸⁸⁶ In a negligent-design-products-liability case, move in limine to exclude subsequent design changes to the product.¹⁸⁸⁷ On a lack-of-informed-consent claim, move in limine to “preclud[e] plaintiff from introducing evidence that defendant did[n’t] have the proper credentials to perform a medical procedure.”¹⁸⁸⁸

Legal Doctrines, Law, and Rules

Move in limine to

exclude evidence “of benefits excludable under the collateral source rule”; ¹⁸⁸⁹

exclude evidence under the best evidence rule; ¹⁸⁹⁰

exclude evidence under the Dead Man’s Statute; ¹⁸⁹¹ and

refrain your adversary from referring to the party who bears the burden of proof. ¹⁸⁹²

Evidence Not Provided in Disclosure

In your in limine motion, ask the court to preclude your adversary from introducing evidence you requested in disclosure or which the court ordered your adversary to produce, and which your adversary failed to produce.¹⁸⁹³ Move in limine to preclude a witness’s testimony if your adversary didn’t give you adequate information identifying the witness, such as the witness’s address.¹⁸⁹⁴

Stricken Pleadings

If the court struck the defendant’s answer, move in limine to preclude your adversary, the defendant, from introducing evidence that may not be introduced: “As a result of a defendant’s answer having been stricken, defendant[] w[as] deemed to have admitted all allegations in the complaint that [defendant] could have denied, including those relating to liability and causation as well as negligence.”¹⁸⁹⁵

Witnesses

Move in limine to

exclude evidence of consistent statements meant to bolster a witness’s testimony; ¹⁸⁹⁶

exclude evidence of “enhanced recollections”; ¹⁸⁹⁷

prevent your adversary from referring to missing witnesses who aren’t in your control to produce; ¹⁸⁹⁸

prevent your adversary from improperly using testimony from examinations before trial (EBTs); ¹⁸⁹⁹

exclude persons from the courtroom; ¹⁹⁰⁰ and

address “[m]atters of the appearance of opposing counsel or witnesses.” ¹⁹⁰¹

High-Low Agreements

Move in limine to determine “whether and to what extent the jury [sh]ould be informed” of high-low agreements in multi-defendant litigation.¹⁹⁰²

Procedure: Moving in Limine

Some judges have their own rules on motions in limine. Check the judge’s rules.

It’s best to move in limine before trial. Doing so means that you’ve foreseen possible trial issues and anticipated your adversary’s trial tactics.¹⁹⁰³ If your adversary during voir dire or opening statement brings up something you believe is improper, move in limine as soon as possible.¹⁹⁰⁴ If your adversary’s statement is so “blatantly improper that you should not have had to anticipate it, move to strike the statement and if appropriate, for a mistrial.”¹⁹⁰⁵

If your motion in limine is oral, make a record by ensuring that a court reporter transcribes what you say. Even if the discussion is in a judge’s chambers, consider making a record of your discussion by having a court reporter present.

You may prepare a written motion. Preparing a written motion in limine will give the court time to consider your motion, “rather than having [the court] . . . render a decision on the fly to avoid delaying the trial.”¹⁹⁰⁶

Consult CPLR 2214 before preparing, filing, and serving your motion papers.¹⁹⁰⁷ You may submit an affirmation or affidavit, or both, in support of your motion in limine. You may also prepare a memorandum of law. In your memorandum of law, explain your legal position and provide copies of relevant statutes and caselaw. Your adversary may submit opposition papers to your motion.

You may move in limine by order to show cause or by notice of motion. Move by order to show cause if the trial is imminent.

Mark for identification as a court exhibit your moving papers and your adversary’s opposition papers to ensure that the papers are “made part of the record.”¹⁹⁰⁸

The Court’s Ruling on Your Motion in Limine

The court may grant, conditionally grant, or deny your motion in limine. The court may also reserve decision or ask you to make your motion in limine...