Bennett: The Art of Motions in Limine

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:

  1. The defense moves to exclude the photographs of the crime scene based on Fed. R. Evid. 403.
  2. 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.

20 comments on “Bennett: The Art of Motions in Limine

  1. Anon

    Excellent, excellent post.

    Please keep these coming.

    What is Judge Kopf going to post to top this?

    How about something on Iqbal / Twombly, and motions to dismiss?

    More please.

    *i might even consider donating to this blog, if we start getting more stuff like this– no joke.

    1. Richard Kopf

      Dear Anon.,

      I can never beat Judge Bennett. So, don’t count on useful posts from me.

      As for contributing to SJ, think of the children! Donate now.

      All the best.

      RGK

  2. Charles

    “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of…. unfair prejudice….”

    In addition to “substantially,” don’t forget to address “unfair.” Of course it’s prejudicial. That’s why you want it excluded. But is it unfairly prejudicial?

  3. bacchys

    Do you hold the lawyer accountable for failing his client when they fail to meet these rules?

    For some reason I’m not seeing any recognition that there are people- especially in criminal trials- for whom all this isn’t exactly a game.

    1. Mark W. Bennett

      I wonder what comment leads you to believe that anyone involved in federal criminal law thinks its a game? Nothing in my experience could be farther from the truth. If I thought it was a game I have far better things to do with my time than try and help lawyers improve their craft. Do I hold lawyers accountable – ask the ones that practice before me and I am confident they will say ‘Yup, way too much” I do not suffer fools well.

      1. Billy Bob

        That’s easy for you to say, Captain. “Improve their craft,”… that’s the part I like best. Ha. All the best, BB. If horses had wings,…

      2. bacchys

        It’s the comments that are missing: the recognition that their clients suffer when they screw up, not them.

        You say you hold them accountable. Do they get the same sentence their defendant-client gets when their screw-ups lead to a conviction?

        1. Mark W. Bennett

          No they don’t. But I often have wished I had the power to do that. Does the heart surgeon get the death penalty when a patient dies because negligence?

        2. SHG

          Your challenge is made to the wrong person at the wrong place. The lawyers who read Judge Bennett, who read SJ, are lawyers who give a damn, who do care and want to be the best they can be for their clients. If you want to make this point count, go to the lawyer marketeers, the lawyer apologists, who focus on telling lawyers that it’s okay to suck, okay not to put in the effort, okay to make it all about the lawyer instead of the client.

          Why do you think so many baby lawyers are so hurt by the mean words here that push them to stop obsessing about their own feelings and put their efforts into defending their clients? If you want to make the point, make it to them. Judge Bennett is doing this to provide nuanced guidance to the lawyers who give a damn about their clients and want to learn how to be the most effective lawyer possible. He’s the last one you should take this out on.

  4. Nemo

    I’m not qualified to comment on the specifics listed, but the one message common to them all is “Don’t make others pay the price for your laziness. It’s rude” This means above all to not waste the time of others.

    The upside to this is that once you have a reputation for taking care of your detail work and being punctual, you are more likely to be cut some slack and get some understanding, when something inevitably does go sideways. Not always, but even if you don’t earn any good will, the other guy may be earning ill will. Not to mention that good habits can save you, but bad habits often sink you.

    1. Billy Bob

      What you meant to say is that “good habits can[not always] save you, but…” Tell that to the Titans of Wall. St. We just finished The Big Short,… not necessarily relevant; however, it brought me back here, repeatedly, for some godforsaken reason,…. if you catch my drift? How many CEOs and traders walked off with millions, after sinking their ships? And our govt. bailed them out!? Not one white collar crook went to prison?! Not at all relevant, but in a weird way, yes,… it’s relevant.
      Get with the program, Captain Nemo!?! Are you sleep-walkkng, or just living in a dream-world? Seriously! This is not fiction or info-tainement for Chrisakes.

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