Effective Use of Motions In Limine

The Honorable George P. Schiavelli, Judge of the United States District Court for the Central District of California An All Too Common Scenario

It is a Tuesday afternoon and the trial has moved into its third of many weeks. Plaintiff has an expert witness on the stand and, as is not uncommon during expert testimony, time appears to have slowed to a crawl. As plaintiffs counsel takes the expert into a new area of inquiry, the cloud of ennui that has settled over the courtroom is broken with a vengeance. Defense counsel turns a deep purple, leaps to his feet, and in a voice at a decibel level generally reserved for small children and banshees, bellows, Objection your honor. The question calls for speculation, conclusion, and an improper expert opinion. The expert is not qualified to opine in this area. Moreover, even if the witness could testify, she should not be permitted to do so because plaintiff failed to serve the appropriate expert declaration. The judge, after looking wistfully at the clock in the forlorn hope that it will indicate that it is time to recess for rivaling that of her adversary both in volume and indignation, says, Defense counsel is well aware the witness is qualified and the question is well within his expertise. Moreover, we have complied in full with all expert discovery requirements. The judge now has two equally unpalatable choices: (1) recess to allow argument and to permit himself and his clerks to research the matter, thus earning the enmity of the jurors, or (2) shoot from the hip and hope that if he commits error, the appellate court will, at least, conclude it is harmless. At that point, one of the lawyers adds insult to injury by saying, Counsel and I have been arguing about this issue for months. On hearing this, the judge looks down balefully and, after idly wondering if the Supreme Court would find an Eighth Amendment violation if he ordered both counsel boiled in oil, asks, Why, if you both anticipated this issue, didnt one of you raise it before now?
A Better Idea

What counsel should have done is file a pretrial motion in limine to give the court a chance to give the issue due consideration. Unfortunately, in practice, motions in limine are often not used or are used ineffectively. It is not uncommon for counsel to fail to make such a motion and thus increase the risk of an erroneous ruling at trial or to make what purports to be such a motion, but which is either improper or has no significance to the outcome of the case, thus wasting the opponents and the courts time. The motion in limine can be a powerful weapon in the lawyers arsenal and may, if used properly, so weaken the opponents case that a favorable settlement or verdict results.
How to Do it Right Authority for Motions in Limine

The term motion in limine refers to motions made shortly before the introduction of evidence at trial. They are usually filed in an attempt to regulate the introduction of evidence, although this is not their only purpose. Although motions in limine are commonly used, there is no statutory authority for them in either federal or state practice. Neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence refer to motions in limine. Rather, the motion derives from the courts authority to control the trial process. See, e.g., Luce v U.S. (1984) 469 US 38, 41, 83 L Ed 443, 448, 105 S Ct 460. Such motions are an accepted part of federal practice. U.S. v Cook (9th Cir 1979) 608 F2d 1175, 1186. Although there is no specific authority for the motion in limine in the California Code of Civil Procedure, Cal Rules of Ct 312(d) recognizes the motion by providing that a motion in limine need

not specify a hearing date because the scheduling of such motions is at the discretion of the trial judge. In addition, Cal Rules of Ct 981.1, which precludes the use of local-local rules in pretrial proceedings throughout the state, specifically exempts motions in limine. Cal Rules of Ct 981.1(b). Rule 981.1 recognizes that motions in limine are part of the trial proceedings. Because Rule 981.1(b) permits local rules relating to motions in limine, many courts have additional rules regulating such motions. For example, Los Angeles Ct R 8.92 prescribes in some detail the showing that must be made in support of and in opposition to the motion. Motions in limine, more than any other kind of motion, are regulated under the courts discretionary power to control the proceedings. This places a significant burden on counsel to ascertain the preferences of the individual trial judge with respect to the timing and form of such motions.
Purpose of the Motion

A wide range of issues is properly the subject of motions in limine, but the most common use is to regulate the admission of evidence at trial. If the court can rule on the admissibility of evidence before the jury is sworn and the trial begins, it is less likely that the jury will hear inadmissible and prejudicial evidence, thus rendering reversible error less likely. In this respect, the motion can be a very powerful tool. If, in the scenario described above, the court excludes the experts opinion, it may gut the plaintiffs case by preventing the plaintiff from establishing a key element of the cause of action that requires expert testimony. On the other hand, if the court admits the evidence, it may mean the defense position will crumble. Thus, it is very important that counsel handle such motions to maximize the courts opportunity to review, analyze, and rule on the motion in order to avoid disastrous results. One tactic that upsets a jury and the judge is the making of constant objections and repeated sidebar conferences to argue the objections. Motions in limine permit counsel to avoid this problem by having the issues determined before the jury is seated and when the court has specifically allowed for time to consider the issues. By avoiding courtroom bickering, the lawyers in the case will appear more competent and professional to the jurors.
Timing of the MotionEvery Judge Is Different

The timing of a motion in limine is flexible. This is where the predilections of the specific court will come into play. In the federal district courts, the timing of comply with normal notice requirements for motions and to be noticed for hearing at the pretrial conference. Make sure you know what the trial judges rule is on the matter. If you have not received a standing order on the matter, inquire about the issue at the scheduling conference. If you have not done that, inquire of the court clerk well before the pretrial conference so that you are not caught flat-footed. For example, I am aware of at least one court that takes the position that, in the absence of a specific order regarding the timing of motions in limine, the time to bring such motions is terminated by the motion cut-off date set by the court, a date that may be months before the trial date. The timing of such motions is largely up to the trial judge in the state courts as well. Under Cal Rules of Ct 312(d), the judge has discretion to set the timing of such motions as well as the manner of service. While this rule should, of course, supersede any local rules limiting the time in which to bring such a motion, such rules exist nevertheless. For example, Los Angeles Ct R 7.9(h) requires that motions in limine be filed with sufficient notice to be heard at the time of the final status conference. Even though, technically, a motion in limine can be filed right up to, or even after, the day of trial, the goals of the motion are best served when it is filed sufficiently in advance of trial to give the judge a chance to consider the motion in detail.
Pocket Briefs During Trial

If it is not possible to bring the motion before trial, the pocket brief is another method for raising issues without delaying the trial, appearing obstructionist, or forcing the court to rule without

benefit of adequate briefing. A pocket brief is simply a short brief, usually prepared and filed during the trial, to advise the court on a discreet point of law. There is no statutory basis for pocket briefs (although in state practice, such a brief may be deemed a motion in limine under Cal Rules of Ct 312). Thus, it is generally a good idea to first advise the court of the issue and of counsels desire to file a pocket brief. The advantage of the pocket brief is basically the same as that of the motion in limine. By preparing a brief rather than relying on an oral objection at trial, counsel insures that the arguments are clearly stated in the record, both to assist the trial judge and to make the issue clear for purposes of appellate review. The pocket brief also helps avoid the problem of interfering with the orderly progress of the trial.
Get a Ruling on the Motion

The goal of the usual motion in limine is to regulate the admission of evidence at trial. If the judge makes a pretrial ruling, all counsel are bound by that ruling for the balance of the trial. If the evidence is excluded, it may not be mentioned in trial or in argument and doing so may constitute grounds for mistrial and for reference to the State Bar. For several reasons, however, the judge may decide not to make a pretrial ruling. First, the court may need additional time to research the issue. Second, frequently issues that appear to be critical before trial never actually develop during trial. Finally, the court may want to see if the context in which the evidentiary issue finally does arise is the same as that suggested by the parties in the motions in limine. If the court does not rule immediately, there are a number of points you must consider. First, ask the court to clarify whether the evidence may be referred to before the ruling is made, e.g., in the opening statement. Normally, the court will order that reference not be made to the evidence until a ruling is made. Second, at the point in trial when you intend to refer to the evidence, make sure you get a ruling on the deferred motion. Finally, if the court does not rule, the evidence is not introduced, and no ruling is obtained, counsel may not raise the evidentiary issue on appeal. In this context, be careful if the courts pretrial ruling is anything less than unequivocal. For example, if the court indicates that the evidence is excluded without prejudice to a further showing when counsel wants to introduce the evidence, counsel should seek that further ruling in order to preserve the issue.
Common Mistakes to Avoid

There are some common mistakes that counsel make in bringing motions in limine: 1. Failure to meet and confer before filing the motion. A motion in limine is subject to the rules applicable to motions generally. This includes the requirement that counsel meet and confer. See CD Cal Local Civ R 73; Los Angeles Ct R 8.92(a)(2). It is very frustrating for the judge and his/her staff to work up a motion only to have the other party indicate it has no intention of offering the evidence to which objection is made. I, and many other judges, will not consider a motion in limine absent an indication that counsel conferred before it was filed. 2. Filing a motion on an obvious point that can be dealt with quickly at trial. Do not file a motion in limine to exclude evidence that is clearly not admissible and that can be dealt with quickly if the attempt is made to offer it. should be dealt with through the meet-and-confer process. 3. Using a motion in limine as a substitute for a summary judgment motion. A motion in limine, although it may have the effect of foreclosing critical such a motion. See, e.g., Los Angeles Ct R 8.92(b). Motions for summary judgment are subject to very specific rules. See Fed R Civ P 56; CCP 437c. 4. Using a motion in limine to raise discovery issues that should have been raised before the discovery or motion cut-off. A motion in limine deals with the admission of evidenceit is not a late-filed motion to compel discovery. I often get motions in which a party seeks to have evidence

excluded because of some asserted violation of the discovery rules that could have been rectified by a motion. A motion in limine to, in effect, assert a late-filed motion to compel is improper.
Preparation to Avoid Exasperation

There are few things that judges dislike more than surprises at trial. When parties raise complicated issues in the heat of battle in front of the jury, the court is faced with an unappealing option: stop the trial to allow the parties to argue and, possibly, to undertake requisite research, or continue with the trial and try to make a ruling on limited information. Remember, as counsel, you have been living with the issues in the trial since the inception of the case. In preparing for the trial, you have spent hours analyzing and preparing the evidence, including the admissibility of the evidence, objections to it, and responses to objections. You may have spent a good deal of time arguing the issues with opposing counsel as both sides staked out their trial positions. Having done that, it makes no sense to present the issues to the court spontaneously through objections in the middle of trial. On the contrary, when you make the motion in limine, you give the judge a chance to derive the benefit of the extensive research and analysis you have done. Even if the judge does not rule on the issue before trial, he or she has been sensitized to it. The judge will be listening to the developing trial with the issue in the back of his or her mind. Thus, if the issue does arise during the trial, the judge will be prepared to make a well-reasoned ruling that is likely to withstand appellate review.