What Motions In Limine Should You Make?
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As we've written before, a motion in limine is a request that the court issue a ruling about some aspect of the trial prior to it beginning. While there aren’t many limits on what an in limine motion can request, they usually concern the admissibility of evidence. In practice, motions in limine are used by lawyers to plan their trial presentation. It's a lot easier to know what story you'll be telling at trial if you have some sense of what facts you'll be allowed to speak about.
In our experience judges vary tremendously in their willingness to entertain and rule upon in limine motions, not just from jurisdiction to jurisdiction but even within the same courthouse. In New York City you will find both judges who want all evidentiary issues to be adjudicated before trial and judges who will reserve decision on almost everything until they see how the rest of the evidence comes in. Because of this, sometimes motions in limine are a crucial part of litigation that plays an outsized role in which party ultimately prevails. And sometimes they are literally meaningless and a larger waste of time than almost anything else found in litigation.
But you can't always know how a judge will react. And many are in the middle between “rule on everything” and “rule on nothing.” So in any trial, it pays to consider which potential motions in limine to make. Many such motions are case specific, but there are a couple of issues that come up over and over again.
1. Experts
Anyone who's been around the block has run into a so-called expert witness who will testify to basically anything to help out the party that hired them. Obviously your first thought is to get the witness excluded entirely, as a charlatan or a quack. But even when that's not going to work, it's worth carving down the expert’s testimony anywhere you can by moving in limine. You’re looking to stop them from offering opinions on parts of the case that are outside of their specific expertise. This is generally a good move. Even judges who are reluctant to exclude an expert entirely are often willing to rule that an expert cannot speculate on fact issues beyond their analysis, offer opinions on the motivations for other parties’ conduct, or, in some cases, offer opinions on the ultimate issue before the jury.
Another frequent target for in limine motions is the “fake expert.” This is an ordinary witness, maybe a party to the case or one of their employees, who has some knowledge of an issue that normally is reserved for expert testimony. Unless the witness been disclosed as an expert, they shouldn't be offering expert testimony. But if you aren't careful, the plaintiff’s CFO can suddenly become a damages expert. Or any witness with peripheral medical training can suddenly become a medical expert. If you catch wind of this in a witness's deposition or have a hunch that it might happen before opening statements, it's worth a motion in limine to enforce the expert disclosure rules.
2. Dismissed Claims and Other Litigation
In most cases, the defendant wants to argue that the plaintiff is a liar who will say anything to get money from a jury. Two very effective ways of doing that is to bring up other lawsuits that the plaintiff has filed or other claims that the plaintiff brought in the same case that were dismissed before trial.
These issues are almost always irrelevant, highly prejudicial, and unlikely to make it into evidence. But it also takes basically zero time to poison a jury with information about them, either in opening statements or cross examination. (“Truth is, you file frivolous lawsuits all the time, don’t you?”). And even if a judge sustains an objection, the damage has already been done. For this reason, if the plaintiff has sued someone before or if some of his or her claims have been dismissed from the case it pays to get an in limine ruling that prohibits the question before it can ever be asked.
3. Criminal History
If a witness has a criminal record, particularly if the crime in question is especially loathsome, one side is going to want to put that record in front of the jury. The other side is going to want to keep it out. Depending on jurisdiction, the rules of evidence can be pretty clear about which criminal convictions can be disclosed to a jury and which ones cannot.
But the information is so inflammatory that even clear rules tend to generate disagreement. And you don't want to be in a position of getting caught unprepared. If your witness has a conviction that is definitely coming into evidence, you want to control how the jury first hears about it. You'll likely want to bring it up in direct examination, so that it can't be dropped like a bombshell in cross. And if a judge thinks that a conviction is not permitted into evidence, you don't want to be the lawyer who blurts it out in front of the jury anyway. A motion in limine can prevent you from getting pinched in either direction.
4. Hearsay
As we've written before, it is a quirk of our justice system that hearsay, which everyone in the world relies upon pretty much every day, is not generally allowed into evidence. Because of this, there are exhibits that look like absolutely damning pieces of evidence—and might be in front of a jury—that are completely forbidden. And there are witnesses—some of them fonts of fascinating gossip— that would be great in front of a jury, but whose testimony is totally improper. They know a lot but didn't actually see or experience anything personally.
Both the “clearly hearsay document” and the “font of gossip witness” are important targets for a motion in limine. For the document you don't want it shown in opening, read aloud by a witness, or otherwise snuck into the jury's mind before you can get it excluded. And the witness is even more dangerous. A clever lawyer will ask the witness for a conclusion (“Did X happen?” “Did the Defendant say Y”) without ever clarifying how the witness knows, in hopes of sneaking in otherwise objectionable hearsay.
5. Minority Affiliations
You can't generally hide the race or sex of your client. But there are other characteristics that might subject them to prejudice that aren't so obviously apparent and can be dealt with by a motion in limine. Religious affiliations are one. If your client practices a faith that others might think unusual or even brand as a cult, you may not want the jury to know about. Immigration status is another. If client was injured while working without authorization, you likely do not want the jury considering that issue. Neither religion nor immigration status are relevant for most cases but like criminal record they can be leaked to a jury in a heartbeat. If you think there is a chance that someone might harbor animus against your client for a status that isn't visually apparent, consider a motion in limine.
6. Case Turning Documents
In business litigation some cases really do come down to a smoking gun e-mail. In some accident cases a key picture of the scene would be worth more than a thousand words. Even if an exhibit isn't literally irreplaceable, there are cases that look radically different depending on whether a key exhibit is in or out. And often you want that key document in front of the jury early and often—meaning likely in opening statement.
If your case is drastically different with a particular exhibit than it is without it, you need to know whether it's in evidence while you still have time to retool your presentation. A motion in limine can give you that information and allow you to prepare properly, rather than simply crossing your fingers that the trial ultimately looks the way that you hope it will.
