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Drafting an Effective Motion In Limine

A motion in limine can be a trial lawyer’s best friend and a weapon which helps to deliver a jury win. Its potency is doubled when used properly and effectively. Motions in limine are most commonly used to regulate the admission of evidence at trial.

As the name suggests, the motion is filed at the start of the trial. It anticipates and requests against placing before the jury the irrelevant and unfairly prejudicial evidence. Though they can be used at any time before the trial, they are inefficiently filed in most instances, leading to wastage of court and lawyer’s time, effort and money. Below are some tips that may help you to use this arsenal of yours more effectively.

  • Early filing of the motion in limine: Not only from the preparation point of view, but it will give you a head start with your opposing counsel as he/she may not be as prepared to counter your arguments.  It is prudent to file it early because an early ruling will help you structure your trial presentation. This includes witness preparation and an opening statement around the rulings. It also gives more time for the judges to consider the motions, which will likely lead to an actual ruling, rather than deferring a ruling to see how it will shape once the evidence comes in.
  • Drafts should be precise and clear; avoid vagueness: A short and to the point drafting will help you to get and keep hold the attention of the judge. A carefully drafted motion in limine will have clarity in its concerns why the evidence is prejudicial and needs to be excluded from introduction before the jury. As expected, motions in limine cite to well-worn rules of evidence as arguments. For example, if a particular piece of evidence is more prejudicial than probative, or it will confuse the jury.  When you simply assert that an exhibit is “prejudicial” or “confusing” it is unlikely to persuade a judge. However, if you identify precisely what you believe the jury will conclude and then explain why the exhibit is prejudicial or will confuse the jury, you may likely have more edge in convincing the judge.  Keep in mind that a precise argument is preferable for your record on appeal too.
  • Tailor a motion in limine to fit your case: You should be creative and insightful to flag objectionable portions/parties while rereading deposition of witnesses, summary judgment motion, pretrial briefing or while scanning the opposing counsel’s trial witness list.  This will help you to tailor your motion to the needs of your case.  If needed, you may need to file multiple motions if warranted in your case.
  • Avoid filing generic motions in limine: Avoid filing generic motions in limine by seeking to preclude the opposing party from generically violating a provision of Evidence Code.  Not only are they usually a waste of time and money to prepare, but such motions annoy trial judges.
  • Get clear and specific rulings: Ask for exactly the ruling you want and frame your motion in limine to achieve that so that you can count on it at trial.  It will also serve as an impeccable appellate record.
  • Be consistent: When a motion in limine is ruled against you, be consistent in objecting to the evidence that was the subject of the motion as it is introduced in trial.  You should proffer the evidence at trial as completely as possible. This will strengthen your appellate record as will putting your objection to the ruling on the record then and there, if such ruling is made in open court. When the judge has deferred the ruling on the motion in limine, you can keep working towards a favorable ruling by objecting to the evidence introduced and explaining why and how the prejudice that you warned about  before trial is now about to happen.  If possible, tie your objection back to the motion in limine (by docket number, if possible) on the record for the appellate record.
  • Never use motion in limine as a substitute for summary judgment: Although a motion in limine has the effect of foreclosing the argument/evidence, it is not a substitute for a summary motion claim.  Motions to summary judgment are subject to very specific rules and this is not the proper avenue to achieve a summary disposition ruling.

The above list is not exhaustive. Even though it may not help you win the motion in limine, it warns sufficiently of the pits you may likely fall into.


Inside Drafting an Effective Motion In Limine