Leveraging motions in limine

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Increase the chances of winning at trial and on appeal

By Lynn Kappelman and Dawn Solowey
Dolan Media Newswires

Motions in limine can help deliver a jury win. Unfortunately, not all trial lawyers use motions in limine effectively.

Some see them as one more task to check off the list when preparing for trial, not realizing their tremendous potential to shape the case.

Here are 10 tips on how to make the most of motions in limine to increase your chance of a winning verdict and create a strong record for appeal.

1. File early

You might have a scheduling order that lists a deadline for motions in limine only weeks or days before your trial date. But just because you can file on the eve of trial does not mean you should. In fact, filing your motions in limine early can pay big dividends.

If you can get a ruling on the motions early, you can structure your trial presentation, including witness preparation and opening statement, around the rulings. In addition, your motions will be better if prepared in advance rather than in the rush of the week before trial.

Opposing counsel might not have started trial preparation in earnest and might not be as equipped to counter your arguments. The judge is more likely to read the motions with adequate time to do so. The judge also might be more likely to issue an actual ruling, rather than deferring a ruling to think about it further and see how the evidence comes in.

2. Be creative

Many lawyers approach motions in limine by reviewing the opposing party’s exhibits and filing a motion or two to preclude those exhibits that are most objectionable. That’s a fine maneuver, but it should not be the whole strategy.

Try re-reading the witnesses’ deposition testimony and flag objectionable portions. Review the opposing party’s theory of the case as stated in a summary judgment motion or pre-trial briefing and flag evidence or arguments of concern. Scan opposing counsel’s trial witness list for people whose testimony is not relevant or will be overly prejudicial, or were not revealed properly in discovery.

In the process of litigating the motion in limine, you might gain valuable insight into what opposing counsel expects the witness to say. Don’t be shy about filing multiple motions if warranted in your case.

3. Keep it simple

Keep your motions in limine short and to the point. Identify the rule (or rules) of evidence you are relying on, cite a few cases if they are directly on point, and explain what you want excluded and why. Unless you are dealing with a particularly esoteric or technical point of law, a few pages should do it. You are more likely to get, and hold, the court’s attention, and to get a ruling, if the motion is accessible and understandable.

4. Be specific

Many motions in limine cite well-worn rules of evidence to argue, for example, that a particular piece of evidence is more prejudicial than probative, or will confuse the jury. But simply asserting that an exhibit is “prejudicial” or “confusing” is unlikely to persuade a judge.

Instead, specifically explain why the exhibit is prejudicial or will confuse the jury. Identify precisely what you are afraid the jury will conclude. Not only are you more likely to win your motion, but a more precise argument is preferable for your record on appeal.

5. Request a hearing

Many judges do not routinely schedule hearings on motions in limine and rely on only the written pleadings and issue rulings as late as the morning of jury selection. Request a hearing, preferably well in advance of trial. That will allow you the opportunity to air fully your concerns about bad evidence, talk to the judge in practical terms about the potential for prejudice, and generally frame the case for the judge.

Ask that the hearing be on the record, rather than in chambers. Get a transcript, which becomes part of your appellate record.

6. Get clear and specific rulings

Frame your motion in limine so as to achieve a clear ruling that you can count on at trial. A simple rule applies here: Ask for exactly the ruling you want. If you want the opposing party to be precluded not only from testifying about a particular subject, but also from mentioning it in opening statement, ask for that precise ruling. If you want the order to bar Exhibits 6 and 7, say that, as well.

Assume that opposing counsel will go right up to the line of what is permissible, and work hard to have the line drawn where you want it.

7. Put your good rulings to work

If you do obtain a favorable ruling on a motion in limine, leverage that ruling at trial. As soon as you sense opposing counsel is venturing into a danger zone, say on the record, “Objection, motion in limine,” to signal to the judge that opposing counsel is entering prohibited territory, then elaborate at sidebar on the record as necessary.

8. Keep working toward a favorable ruling

Sometimes you simply cannot persuade a judge to rule on a motion in limine before trial. Many judges prefer to see how the evidence develops before taking a position on the motion. If that happens, keep working toward a favorable ruling as trial proceeds.

When the witness, testimony or exhibit at issue arises, ask to be heard at sidebar, and re-raise your motion in limine. Explain why and how the prejudice that you warned about before trial is now about to happen. For the cleanest appellate record, tie your objection back to the motion in limine (by docket number if possible) on the record.

9. Object to bad rulings

If your motion in limine is denied, you still can use that motion as a tool to build an effective appellate record. If the motion is denied in open court, put your objection to the ruling on the record then and there.

If the motion is denied before trial, ask to be heard briefly the morning of trial before the jury is seated to restate your objections to those rulings for the trial transcript. Make a clean record, citing the motion and the ruling by name and docket number.

10. Don’t let your objection wither away

If your motion in limine is denied, do not assume that the filing of that motion by itself has preserved your objection adequately. The best practice is to continue to object at trial to the introduction of the evidence that was the subject of the motion.

Lynn Kappelman and Dawn Solowey are partner and senior counsel, respectively, in the labor and employment department at Seyfarth Shaw in Boston.