Use In Limine Motions to Frame the Field of the Courtroom Battle

August 7, 2017Articles New Jersey Law Journal

In limine motions are an under-deployed weapon in the trial lawyer's arsenal. This article shares two things: first, some observations on the evolving use of in limine motions; second, a note of caution regarding the important distinction between state and federal court regarding in limine motions to bar expert testimony. Although in limine motions are routine today, they were not a standard part of litigation practice as recently as 50 years ago. The use of in limine motions has evolved as well, from a tool to narrow the issues before the commencement of trial, to their current use which includes being brought even during the course of trial to avoid exposing the jury to certain evidence. In limine motions vary in scope from those that whittle away at an opponent's case, to those that can inflict a fatal blow by eliminating an opposing expert.

In Limine Motions in General

In limine motions are typically filed before trial once the parties are committed to both their proofs and their theory of the case. Although in limine means "at the start" or "at the threshold," this doesn't mean that in limine motions are limited to pre-trial. Rather, some in limine motions may naturally arise during the course of trial testimony, particularly proposed expert testimony.

In limine motions allow the court to avoid the presentation of potentially prejudicial questions, irrelevant evidence and inappropriate arguments and objections. An in limine motion can preclude reference to evidence, prohibit reference to certain matters or laws, or otherwise clarify what is "in and out of bounds" insofar as legal argument. A motion in limine may, for example, serve to exclude evidence under N.J.R.E. 104. An in liminemotion is inappropriate, however, if a ruling upon that motion requires the trial court to engage in the analysis of evidence.

One benefit of in limine motions is that, by discussing them with the court in advance, you educate the court of your concerns regarding the admissibility of certain evidence. If the court understands your perspective, you may have more success in barring that evidence at trial because the court is sensitized to the issue. Obviously, by filing an in limine motion you are necessarily telecasting your theory of the case (i.e., what proofs you want or fear) and, further, you are typically trying to destroy the underpinnings of your adversary's case. If you have a well-conceived in limine motion that destroys a keystone of your adversary's case, discussing that in limine issue serves as a "shot across the bow" to your adversary and may drive the case toward settlement.

Although by no means an exhaustive list, in limine motions may be used to:

1. Bar expert testimony (see Daubert and Kumho Tire as referenced below);

2. Bar evidence on the basis of relevancy, undue prejudice or lack of competency;

3. Move regarding admissibility of evidence on theories such as admission against interest, hearsay exceptions, public or governmental record; and, inter alia,

4. Prevent argument based upon estoppel or waiver if your adversary has waived a particular issue or admitted that it was not in dispute.

In Limine Motions to Exclude Evidence Are Granted Sparingly

In limine motions may be used for many purposes, but the most common one is to prevent your adversary from ever telling the jury about some unduly prejudicial theory or fact. Such evidence will only be precluded by in limine motion if it is clearly inadmissible based upon any potential use or ground. The party seeking to bar the admission of that evidence bears the burden of demonstrating both that: (1) the in limine order restricting reference to or use of that evidence is warranted; and (2) the order is sufficiently specific and narrowly tailored. Even if the court grants the in limine motion, it may be a pyrrhic victory because if that same evidence is put at issue then the court will have to unwind its in limine order and permit reference to the prohibited evidence.

Discuss In Limine Motions with Your Adversary and with the Trial Judge

Because each judge has a slightly different perception of what is an appropriate basis for an in limine motion, consider raising the issue of in limine motions early (you are required under R. 4:25-7(b) to file at least two days before trial commences). If you delay, you may lose the opportunity to present issues that will reduce the scope of trial and potentially prevent the jury from hearing inappropriate evidence altogether. The best course is to identify the in limine issues you see, discuss them with your adversary (as well as any in limine motions they intend to bring), and have a case management conference with the trial judge. The trial court will ask, in all likelihood, whether you've discussed potential in limine motions with your adversary. As trial by ambush is frowned upon (and frankly because it is simply more professional and pleasant to work with a colleague at the bar), it is good common sense to discuss in limine motions with your adversary well in advance. That being said, give some serious independent thought to what undisclosed in limine motions your adversary might file so that you are prepared.

The trial court is required to exercise heightened scrutiny if the in limine motion is filed at the last minute and has the potential to be dispositive. Given the restrictive standard for granting in limine motions, do not lose hope that you are unable to bar evidence from coming into trial if your motion in limine is denied. The court may be doing its job and waiting to see whether your adversary actually lays a proper foundation at trial. It is often difficult to divine, when an in limine motion is denied, whether the court is providing a preview of coming attractions (and will rule similarly once the facts are presented at trial) or whether the court is simply being prudent and withholding a determination until it has heard all of the facts. If your motion in limine is denied, raise the objection again when the matter arises at trial.

Prepare Your Draft Motions in Advance

As trial nears, the pressure to prepare demonstratives, scripts for cross-examination and direct examination, opening statements, closing statements, exchange exhibit lists, etc., take up a great deal of time and energy. If possible, anticipate in advance what in limine motions you may wish to file and begin preparing them when you have time. Likewise, consider what in limine motions your adversary may file, and either blunt their attack by establishing a factual dispute over that point or, alternatively, begin researching your response when you have time.

'Kumho' and 'Daubert'—Federal Courts Are Generally More Restrictive on Experts

Kumho Tire v. Carmichael , 526 U.S. 137 (1999), and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S.579 (1993), have changed the landscape of expert witness testimony in federal court. Under the auspices of the trial court's "gatekeeping" function, these two decisions have thwarted a great deal of expert testimony. Although the standards in state and federal court are theoretically the same, practical experience in both federal and state court reveals that it is more difficult to get expert testimony admitted in federal court than it is in state court. One reason for this disparity is that in federal court, Daubert makes clear that the federal court judge may "prevent the jury from learning of authentic insights and innovations" (i.e., legitimate and well-founded science may conceivably be excluded). Daubert, 509 U.S. at 597. New Jersey state court judges are uniformly more generous in permitting well-founded expert testimony to be presented to the jury. Savvy defense counsel have been able to completely undermine many plaintiff's actions by filing in limine motions in federal court to prohibit expert testimony.

In Limine Motions are Neither Motions for Summary Judgment Nor Motions to Strike

An in limine motion is distinct from a motion to strike or a motion for summary judgment. In a motion to strike, some evidence has been referred to or admitted. A motion in limine is typically filed before such evidence has even been presented.

A motion in limine is also distinct from a motion for summary judgment. A motion in limine is typically a very discrete issue, namely that a particular piece of evidence is unduly prejudicial or that a specific argument has been waived given the opposing party's position in discovery. A motion for summary judgment—which may be based upon an in limine ruling—is a motion for an affirmative ruling on the merits of the opposing party's claim. That said, if evidence of X is barred by an in limine motion, and your adversary must necessarily prove X to establish her claim, there are occasions where an in limine motion is necessarily going to lead to a dispositive motion based upon that in limine ruling.

A Note of Caution: Preserve the Issue for Appeal

A ruling upon a motion in limine does not necessarily preserve that issue for appeal. If the court rules upon a motion in limine, note the issue and, at the appropriate time in the trial when that issue arises, ask for a side-bar conference. Make sure it's on the record. State that the court has ruled upon that issue and the proffer you would have made, but for the in limine motion, so the issue is preserved for appeal. There is case law in the Third Circuit that it is unnecessary to renew the issue during trial if the court's ruling clearly applies, Virgin Islands v. Joseph , 964 F.2d. 1380, 1394-5 (3rd Cir. 1992), but I suggest you raise the issue at trial nonetheless and obtain a clear ruling from the court. The penalty for raising the issue is small. The penalty for not preserving the issue and trying to convince the New Jersey Superior Court Appellate Division or the Third Circuit Court of Appeals that this was preserved, even though it is not in the trial transcript, is simply too high.

Why You May Not Want to File an In Limine Motion

By filing an in limine motion you are clearly revealing to your adversary your concerns as trial counsel. Although having a clear understanding of what is and is not in dispute is preferable to chaos, give some consideration to whether you are highlighting your Achilles' heel. Alternatively, if you file an in limine motion, you may give your adversary the opportunity to solve the problem you perceive by reshaping the testimony he introduces during trial. In the right case you may be better off not raising the in limine motion and educating your adversary, and, when his proofs are deficient, then raise a motion to dismiss.

In conclusion, in limine motions are a great tool and can both avoid the risk of prejudicial evidence and narrow issues in dispute (and avoid wasted effort). Keep your in limine motion short and direct. Because of the hectic pace of preparing for trial, it's also helpful to consider these motions well in advance and to give some thought to the motions your adversary will likely follow. In limine motions tend to come in bunches and must be addressed in a compressed time-frame. If you keep your in limine motions as well as your responses to your adversary's in limine motions targeted, the court will appreciate it, and you will quickly hone the trial down to what really is at issue for the trier of fact.

Reprinted with permission from the August 7 issue of the New Jersey Law Journal. (c) 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.