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BRIEFS FOR THE BRIEF WRITER: Effective motions in limine

Diane Slomowitz

Your years-old case is finally coming to trial. You’ve got documents to review, witnesses to prep, exhibits to mark, and opening arguments to prepare. The hours grow longer, as the days before trial grow shorter.

The scheduling order is taped to your computer (your can never be too careful). One deadline looms large. Motions in limine are due in two days. You list the adverse evidence you don’t want the jury to hear. Can you exclude it all?

A motion in limine, when properly advanced, is one of the most useful weapons available to trial counsel. A successful motion can negate anticipated testimony or documentary evidence and, in the lucky few cases, eviscerate an opponent’s case.

A motion in limine is, by definition, an evidentiary motion. It usually seeks to exclude the admission of testimony or documentary evidence for noncompliance with various evidentiary rules, including hearsay, witness qualifications, foundation, or relevance. Even otherwise admissible evidence can be excluded if its probative value is strongly outweighed by probable jury confusion or prejudice.

The motion’s purpose is to resolve evidentiary issues before trial, so that the jury does not hear inadmissible or prejudicial evidence, which can result in reversal on appeal. It also prevents the jury from being subjected to multiple objections, which can disrupt the flow of properly admissible evidence. And, as trial counsel well knows, the fewer surprises for the trial court, the better.

The mechanics of a motion in limine, and its supporting brief, are simple. Identify the questionable evidence (and submit it with the motion), describe the purpose for which the evidence will be introduced, cite the applicable rules (and other directly applicable authorities), and explain why the evidence should be excluded.

Be specific. Do so in as short and concise a document as possible.

A few cautions. A motion in limine is an evidentiary, not a dispositive, motion. It is not a substitute for summary judgment, especially after the dispositive motion deadline. This is true, even though the practical effect of a granted motion could make it impossible to prove a claim’s essential elements.

Similarly, a motion in limine is not a discovery motion. It is not, and should not be used as a substitute for, a motion to compel, or, more importantly, a motion to exclude evidence as a discovery sanction. Chapter 804, Wis. Stats. governs Wisconsin discovery (Federal Rules 26-37 in federal actions), and the scheduling order likely will contain deadlines for discovery motions. The court will not be happy to see a late discovery motion disguised as a motion in limine.

The trial court is as busy, if not more so, than you. Long theoretical or unduly argumentative diatribes, including wholesale statements of your client’s case without any reference to your opponent’s position, will disserve your motion. The court may view your well-founded motion as one-sided hyperbole, and summarily deny it (as well as your other motions).

In that vein, selectively choose your motions. File only motions that have more than a reasonable chance of being granted. Bombarding a court with multiple motions, including one or more “iffy” ones, may lead the court to discredit them all. You may always object to questionable evidence at trial.

If the court denies your motion in limine, be sure that your objection is in the record for appeal purposes. The court may defer ruling on your motion, perhaps to evaluate the proffered evidence in the context of other evidence at trial. Whatever the reason, your motion will have sensitized the court to the evidentiary issues. When the evidence surfaces, be sure to resurrect your motion and obtain a ruling, before the evidence is introduced.

On occasion, the trial advances in such a way that your opponent no longer wants to introduce the challenged evidence. If that happens, don’t be frustrated about the time spent preparing your motion. Be confident that your professional savvy prepared you for all potential roadblocks. Then go back and win your trial.

DIANE SLOMOWITZ is a shareholder with the law firm of Fox, O’Neill & Shannon, SC in Milwaukee. She concentrates her practice on legal research, legal writing and appellate brief writing for the firm’s business and individual clients. Diane can be reached at 414-273-3939 or dslomowitz@foslaw.com.

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