This is a subject I have talked to many of my colleagues about to see if my experiences and views are idiosyncratic. They are not. The number one problem with motions in limine in both criminal and civil cases is the same, and after twenty-three years on the bench, I still find it surprising and shocking, but easily fixed.
Rule Number One: Attach the evidence you want excluded to the motion. Simple, yes, but judges could retire early if they had one dollar for every time a motion in limine was filed without attaching the matter the lawyer wanted excluded.
Here are some common examples:
- The defense moves to exclude the photographs of the crime scene based on Fed. R. Evid. 403.
- The defense moves to exclude the prior criminal record of the defendant, if she testifies, because the convictions are not admissible under Fed. R. Evid. 609.
The good news is that at least the lawyers provided the rule of evidence that support the motion. The bad news is neither the photographs nor the rap sheet are attached. As I frequently tell lawyers on the record: “Contrary to your belief, I never have, nor do I currently, or in the future, plan to reside in the discovery file! Why would you assume I could decide your motion without the benefit of being able to see the pictures and the rap sheet?”
Rule Number Two: Do not violate Rule Number One.
Rule Number Three: We have specific deadlines in our trial management order for Motions in limine. The order does not require you to file the motion on the last possible date, but 80% of the lawyers do so. The other 20% file it after the deadline. You will get more thorough rulings if you file the motions early.
Rule Number Four: Most motions in limine come down to balancing the probative value versus the prejudice. Fed. R. Evid. 403 states the test:
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of…. unfair prejudice….” (My emphasis.)
Remember the word “substantially.” It is not enough in your motion or brief to simply regurgitate the balancing test. You need to persuasively establish why the evidence should be excluded under this standard.
Rule Number Five: File one motion in limine. I know it looks more impressive to your client and you may be able to bill more for filing 16 motions in limine when one with 16 parts will do, but file one motion.
Rule Number Six: Please, please do not file boilerplate motions. Tailor your motion to the facts of your case.
Rule Number Seven: Make sure your witnesses know, based on motion in limine rulings, what they can and cannot testify to. Failure to do this creates very difficult problems at trial.
Rule Number Eight: In my experience, many of the parts of a motion in limine in both civil and criminal cases are agreed upon in the response. How about showing your proposed motion to the other side before filing and see if you can moot parts of the motion before filing? Or better yet pick up the phone and talk to the other side.
Think about this from the judge’s perspective, we often start our work on the motion before the resistance is filed – this allows us to get out written rulings quickly. It’s frustrating to work on parts of a motion in limine that the other side is not going to be contesting.