Trial preparation

• Author: Aaron B. Maduff
• Pages: 261-284

TRIAL PREPARATION

10-1 LITIGATING SEXUAL HARASSMENT & SEX DISCRIMINATION CASES §10.1

CHAPTER 10: TRIAL PREPARATION

§10.1 TASK: DRAFT MOTIONS IN LIMINE

§10.1.1 WHAT AND WHY

The motion in limine is an important tool available to the trial judge to ensure the expeditious and evenhanded

management of the trial proceedings. It performs a gatekeeping function and permits the trial judge to eliminate

from further consideration evidentiary submissions that clearly ought not be presented to the jury because they

clearly would be inadmissible for any purpose. The prudent use of the in limine motion sharpens the focus of later

trial proceedings and permits the parties to focus their preparation on those matters that will be considered by the

jury. Jonasson v. Lutheran Child and Family Services, 115 F.3d 436 (7th Cir. 1997). See, Ash v. Tyson Foods, F.

3d, 2010 U.S. App. Lexis 17155 (11th Cir. 2010).

Motions in limine seek to limit trial testimony or the introduction of certain evidence. They may be used to:

• Eliminate issues and/or preclude admission of facts at trial.

• Exclude inadmissible, irrelevant or prejudicial evidence (documentary or testimonial) at trial.

• Avoid prejudicing the jury through evidentiary objections at trial.

 

• Alert the judge to evidentiary issues that may arise, even if the motion is denied or stayed until trial.

• Educate the trial judge and persuade him or her to see the case in the light most favorable to your client.

• Encourage a settlement before or during trial.

• Ferret out the opponent’s strategy. (For example, if you have an after acquired evidence issue that is not out-



how far the defendant intends to push the issue).

Practice Note: Think creatively

When drafting motions in limine, think like the defendant’s counsel. What in your client’s past or present

could get twisted around in the front of the jury to your detriment? Assume your client tried to commit

suicide with a knife. Draft a motion in limine to keep the defendant from hinting or asking if your client

really wanted to bring the knife to work and do damage to co-workers. Assume your client has written a

 

It is irrelevant and it gives the defendant’s counsel the opportunity to prowl around on how your client, a



But think beyond just the obvious and focus on what possible, twisted utility the defendant’s attorney



§10.1.2 WHEN

Motions in limine are usually decided on the eve of trial. Check your local rules or the court’s scheduling



§10.1.3 HOW

§10.1.3.1 Review Federal Rules of Evidence

The Federal Rules of Evidence provide the legal basis to exclude certain evidence. Consider the following grounds:

• Rule 104 provides that the court must decide preliminary questions of the admissibility of evidence, a person’s



• Rule 401 describes relevant evidence as “evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it would be without

the evidence.”

• Rule 402 provides that “evidence which is not relevant is not admissible.”

• Rule 403 provides that relevant evidence may be excluded if “its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.”

TRIAL PREPARATION

§10.1 LITIGATING SEXUAL HARASSMENT & SEX DISCRIMINATION CASES 10-2

• Rule 404 provides that “evidence of a person’s character or a trait of character” is not admissible to prove that

the person acted “in conformity therewith on a particular occasion.” Character may be proven by testimony

about a person’s reputation or by opinion testimony.

• Rule 406 provides that evidence of “the habit of a person or the a routine practice of an organization” is admissible

to prove that the person or organization acted in conformity with that habit or practice on a particular occasion.

 

victim “engaged in other sexual behavior” or to prove the victim’s “sexual predisposition” generally is not

admissible. This evidence may be admissible only if its “probative value substantially outweighs the danger

of harm to any victim and of unfair prejudice to any party.”

• Rule 412 provides that evidence of a victim’s reputation is admissible only if “placed in controversy by the

    

motion and the court conducts a hearing in camera.

Practice Note: Review state rules of evidence



for limiting or excluding evidence at trial. See, e.g., Cal. Evid. Code §1106(a), which precludes use of

   

See Kelly-Zurian v. Wohl Shoe Co., 22 Cal. App. 4th 397 (1994). See,

Csiszer v. Wren, F. 3d, 2010 U.S. App. Lexis 16294 (8th Cir. 2010).

§10.1.3.2 Consider Grounds for Motion

    

transcripts and the key documents in the case. Consider bringing a motion in limine on the following grounds:

§10.1.3.2.1 Plaintiff ’s Sexual History and Conduct—Fed. R. Evid. 412

Rule 412 of the Federal Rules of Evidence provides that certain evidence is not admissible in proceedings

involving sexual misconduct. This includes evidence of other sexual behavior of the victim and evidence regard-

ing the victim’s sexual predisposition. Although originally written for criminal cases and termed a “rape shield

    

has alleged sexual harassment.” Fed. R. Evid. 412, Advisor Committee Notes to 1994 Amendments.; see also

Wolak v. Spucci, 217 F.3d 157, 160 (2nd Cir. 2000). Any of the following circumstances may give rise to a Rule

412 motion in limine:

Plaintiff’s Sexual or Personal History

   See E.E.O.C. v.

Wal-Mart Stores, Inc., 1999 WL 1032963, *3 (10th Cir. November 15, 1999)( “This court holds that ‘[a] person’s

private and consensual sexual activities do not constitute a waiver of his or her legal protections against unwel-

come and unsolicited sexual harassment’ at work.” Citing Winsor v. Hinckley Dodge, Inc., 79 F.3d 966, 1001

(10th Cir. 1996)). See, also Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959, 962 (8th Cir. 1993)

     

 Wolak v. Spucci, 217 F.3d. 157 (2nd Cir. 2000)

    

as they were performed was not admissible); Gowans v. Tidwell, 2013 WL 2285446 (E.D. Mich. May 23, 2013)

(“voluntary decisions to participate in temporary Muslim marriages, consensual acts of cunnilingus, and to join

an online dating community have absolutely no bearing on whether a nonconsensual act of sexual assault caused

mental distress.” Emphasis in original).

Plaintiff’s Sexual Behavior Outside Workplace

   

R. Evid. 412; Stacks v. Southwestern Bell Yellow Pages, 27 F.3d 1316 (8th Cir. 1994) (district court erred in con-

Kelly Zurian v. Wohl Shoe Co., 22



with her husband, abortions and sexual conduct with individuals other than defendant).