A Plaintiff's Practical Guide to Motions In Limine

Every plaintiff’s attorney has a “love/hate” relationship with motions in limine. On the one hand these motions serve the vital function of preventing defendants from introducing irrelevant and prejudicial evidence. On the other hand defendants use these same motions to try to handcuff plaintiff’s counsel and sabotage the plaintiff’s case. This article briefly discusses how plaintiff’s attorneys can use such motions to achieve their goals while preventing or limiting the damage done by defendants.

What is a Motion in Limine?

Motions in limine are normally filed immediately prior to trial to prevent the admission of, or questions regarding, prejudicial evidence. The purpose is to avoid the futile attempt of trying to “un-ring the bell” once the question is asked. Such a motion to exclude must be based on grounds that would be sufficient to object or move to strike the evidence. Johnson v. Chiu (2011) 199 Cal. App. 4th 775, 780.

There are three main goals of motions in limine; the first is to prevent the defendants from offering inadmissible and prejudicial evidence either in voir dire, opening statement or during trial; to alert the court to evidentiary issues that may come up during trial so that it can begin thinking about those evidentiary issues rather than making a snap judgment in the middle of a case; and to obtain a ruling beforehand that certain evidence is admissible so that, if you mention it during opening statement, you have a good shot at getting it in.

Even though such motions are filed in nearly every case there is little statutory guidance regarding such motions. For example, such motions are not codified in either the Federal or California Rules of Civil Procedure and the requirements are often found in local or bench rules.

Some typical plaintiffs motions are:

  • Excluding evidence of collateral source payments. Helford v. Southern California Rapid Transit District (1970) 2 Cal. 3d 1, 10.
  • Remarriage of surviving spouse in wrongful death case. Wood v. Alves Service Transportation, Inc. (1961) 191 Cal. App. 2nd 723, 798.
  • Tax consequences of personal injury award. Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal. App. 3d 626, 664-668.
  •  Status of plaintiff as an undocumented worker. Wielgus v. Ryobi Technologies, Inc. (N.D. 111 2012) 875 Fed. Supp. 2d 874.

San Diego County actually has a list of standard plaintiff and defense motions in limine it deems granted without the necessity of filing a written motion. See San Diego Superior Court Local Rule 2.1.18.

What a Motion in Limine Isn’t.

It is not uncommon to receive a flood of motions in limine from the defendants. Since those motions are usually served right before trial they create a tremendous distraction and are often not valid motions in limine at all. For example:

  • A motion in limine is not a motion for non-suit. A motion for non-suit is made only after the plaintiff completes the presentation of his or her evidence and is given an opportunity, after objection, to add further evidence if necessary. Stein-Brief Group Inc. v. Home Indemnity Co. (1998) 65 Cal. App. 4th 364, 369 (But see City of Livermore v. Ball (2012) 205 Cal. App. 4th 1460, in which the court allowed a motion in limine to act as a general demurrer.)
  • A motion in limine is not a motion for summary judgment. Motions for summary judgment have numerous procedural protections that simply do not come into play when a motion is filed immediately before trial. See Provident Life v. Adie (E.D. Mich. 1997) 176 F.R.D. 246, 250. (See also R&B Auto Center Inc. v. Farmers Group Inc. (2006) 140 Cal. App. 4th 327, 371 “To have the sufficiency of a pleading or the existence of triable issues of material fact decided in the guise of a motion in limine is a perversion of the process.”)
  • A motion in limine should not be used for day to day trial logistics. Rather, those are matters of common professional courtesy that should be worked out beforehand. If the parties can’t work those out, then is the time to bring those issues to the court. Kelly v. New West Federal Savings (1996) 49 Cal. App. 4th 659, 671.
  • Motions in limine which merely say that plaintiff show follow the law, (for example, that plaintiff’s witnesses shouldn’t be allowed to speculate or that lay witnesses can’t render expert opinions) do not provide any “meaningful guidance for the parties or the witnesses.” Id. at 670.
  • Motions in limine should not be used to compel a witness to conform his or her trial testimony to pre-trial discovery. FMC Corp. v. Plaisted and Companies (1998) 61 Cal. App. 4th 1132, 1168. As pointed out in Kelly, supra, while pre-trial discovery may be used to impeach the witness, it does not bar the witness from saying something different at trial.

When Must a Motion in Limine Be Filed?

There are no hard rules in either federal court or in California regarding the specific dates that motions in limine must be filed. Rather, these appear to be more a matter of general practice and lore. Always check the local court rules to see what filing deadlines are required and, if there are no such deadlines, get a pre-trial order regarding the date for filing such motions. If you anticipate that the defendant will be filing numerous motions, try to get a hearing date out as far from trial as possible. You don’t want to be bogged down the weekend before trial responding to 20 motions rather than preparing your opening statement.

If something arises during trial which leads you to believe defendant may seek to introduce inadmissible evidence you can make such a motion during trial. See e.g. Hyatt v. Sierra Best Co. (1978) 79 Cal. App. 3d 325, 327. Also, there appears to be no fixed requirement on how early a motion can be made. If you have some significant issue you feel is deadly to your case, seek an early ruling so you can have guidance for settlement purposes.

Types of Motions in Limine.

There are, essentially, two types of motions in limine. There is a “prohibitory” motion which absolutely prohibits the opponent from offering any evidence, direct or indirect, regarding a specific subject. In California a court ruling denying that motion usually allows the opponent to appeal if that motion was granted incorrectly, without the necessity of raising that issue further during trial. But be cautious, this does not apply in all states. Other courts require that you again object when the subject is raised in order to preserve your appeal. Separately, a “preliminary” motion prohibits the opponent from mentioning the matter without first obtaining permission from the court outside the presence of the jury. The advantage of the “preliminary” motion is that, if your opponent later believes that the evidence is relevant, they have an affirmative duty to seek leave to introduce that evidence or have lost their right to preserve that issue on appeal.

Even when a motion is “prohibitive,” courts have consistently held that, the trial court has authority to revisit its ruling at any time. See Ohler v. United States 120 S. Ct. 1851 (U.S. 2000.) Thus, don’t believe that, because you have won your motion, you can wade into an area that may make the evidence relevant. Conversely, keep an eye out that the opponent may open up an area in which they have been granted a motion because they believe they are now invulnerable from attack.

Form of the Motion.

Although there is some authority that motions in limine may be made orally, most local rules require that the motions be made in writing, specify exactly what it is that the moving party wants and be accompanied by supporting declarations and points and authorities. In Los Angeles County motions need to be supported by a declaration specifically identifying the matter which is alleged to be inadmissible, a representation to the court that the subject of the motion has been discussed with opposing counsel, that counsel has refused to stipulate that the matter will not be mentioned or displayed, and a statement of the specific prejudice that will be suffered if the motion is not granted. Los Angeles Superior Court Rule 3.57.

Make sure you request in your motion that the court order that defendant not violate the order either directly or indirectly by asking any question or raising an inference regarding the prohibited evidence and that it instruct its witnesses to also not violate the order and inform them of the consequences of doing so. If the court indicates it will take your order under submission always request a temporary exclusion order until the court rules.

Opposing the Motions of the Defendants.

Perhaps the best argument for denial was stated in People v. Jennings (1988) 45 Cal. 3d 903, 975.  “Until the evidence is clearly offered and the court is aware of its relevance in context, its probative value and its potential for prejudice… the court can’t intelligently rule on admissibility.” Another way to avoid having evidence precluded is to come up with a different ground for its admission and offer a limiting instruction regarding that evidence. For example, in nursing home cases we usually try to get in the fact that defendants have been cited by the California Department of Public Health for similar problems in the past. Defendants argue that such information is irrelevant. The response is that it is relevant for purposes of “notice” and we offer the court a limiting instruction limiting the admissibility of that evidence solely for notice purposes. Some would say that jurors aren’t capable of making that fine a distinction but that is not the position of the appellate courts.

If you are going down in flames and it is clear you are going to lose the motion, make an offer of proof, tell the court you won’t bring the issue up without its approval and try to reserve the ability to revisit the motion if the defendants open up the issue or, somehow, the information becomes relevant. If defendants do open up the issue, don’t wade in and start asking questions just because you believe the matter has been opened up. Rather, come to the bench and indicate to the court that you believe that the matter has been opened and that you wish to inquire on the issue. If the court refuses make sure that you make a record at the first convenient break so that you have preserved your right of appeal.

Remedies if the Opposing Side Violates the Order.

There are a number of potential remedies if opposing counsel violates an order in limine, none of them particularly good.

In California, the attorney for the opposing party can be held in contempt and subject to a maximum fine of $1,000. California Code of Civil Procedure §1218(a). The more common judicial remedy is for the court to indicate that the evidence is inadmissible and for the trial judge to admonish the jury to disregard the evidence. See e.g. Sabella v. Southern Pacific Co. (1969) 70 Cal. 2nd 311, 320. The problem is that this simply puts an exclamation point on the inadmissible evidence which is absolutely the opposite of what you are trying to achieve.

Finally, the court can order a mistrial. Again, the problem with requesting a mistrial is the court may well grant it. As plaintiff’s counsel the last thing you want to do is to have to start over.

To avoid waiver, you must immediately object to defense counsel’s misconduct.

You Violated the Motion.

In the heat of battle you violated the motion in limine, or, as has often occurred the witness you have told “don’t mention x” deliberately blurts it out despite your admonitions to the contrary. Now is the time to be obsequious. Make sure the court knows that the mention of the prohibited evidence was inadvertent and immediately offer to prepare an instruction for the jury indicating that they should ignore the evidence in question. There is a presumption that if a jury has been told to ignore the evidence that it actually has managed to do so. See Grimshaw v. Ford Motor Co. (1981) 119 Cal. App. 3d 757, 794-795.

Conclusion.

Cicero said that “(w)hen you have no basis for argument, abuse the plaintiff.” Motions in limine can help prevent that abuse.

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