Motions in Limine
A trial is an opportunity for litigants to offer evidence in support of their claims and defenses. But not all of the evidence they want to offer may be admissible. Instead, at trial, the parties may object to the admission of evidence on various grounds. They often also object to evidence before trial through motions in limine.
Why should you read this post about motions in limine?
You want to see this post before a judge excludes it.
You want to know how to pronounce “in limine.”
You were afraid that lawyers preparing for trial didn’t also have to deal with motion practice.
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What Types of Evidence May Be Subject to a Motion in Limine
A primary reason why a court may exclude evidence is because it is irrelevant. Courts have limited time and attention, and so they have an incentive to trim away evidence that will just be a waste of time. Further, an attorney may want to save the time and effort of responding to evidence that has no impact on the ultimate issues in the case.
But relevance is not the only grounds to exclude evidence. Some evidence may be subject to the attorney-client privilege. And some evidence may be prejudicial, because it is shocking or embarassing and only somewhat relevant to the purpose of the trial. A court may also exclude evidence as “cumulative” if it just repeats the same information as other evidence.
These concepts are often recorded in a statute. Federal Rule of Evidence 403, for example, allows a federal court to exclude “evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Parties may also ask a court to exclude evidence that asserts a particular theory. For example, a lawyer may seek to exclude “any evidence whose purpose is to show the plaintiff was negligent” if there is a legal reason why the plaintiff’s negligence is irrelevant, such as a statute that assigns strict liability to the defendant. Some lawyers attempt to make motions in limine into another attempt at summary judgment. This is because, by excluding legal theories or the key evidence to support those theories, motions in limine allow a litigant to practically eliminate a cause of action or defense before trial.
The Timing of Motions in Limine
Unlike many other motions, a motion in limine (pronounced “lim-in-ay”) is usually drafted, argued, and decided on an accelerated schedule. These motions may be shorter than motions like a motion to dismiss or a summary judgment motion. They may focus heavily on citing case law and applicable rules of evidence, but some concentrate on the factual reasons why the proffered evidence is irrelevant. And whereas many motions allow three weeks or more for a response, and then more time for a reply, parties may only have a week or so to respond and the moving party may not have the ability to reply.
Ideally, a judge decides motions in limine before trial, so the attorneys can plan accordingly. (Or decide to change their strategies or settle if the evidence they needed has been excluded). In many cases, the decisions on motions in limine do not come until the eve of trial. This may make it difficult for an attorney who wants to avoid planning for the evidence at trial, since she will have to plan anyway, regardless of the outcome of the motion. And for some bench trials, the judge may even wait until during or after the trial to decide whether to admit some of the evidence presented before her.
Strategically Deciding Whether to Make Motions in Limine
At first blush, it may sound like a good idea to try to exclude as much evidence as possible. But attorneys may have strategic reasons for making or not seeking the exclusion of evidence.
Each side at trial usually only has a finite amount of time. For example, a judge may allocate 20 hours to each side. As a result, a lawyer may decide that it makes sense to allow one side to waste some of its time on irrelevant evidence or to bury its good evidence in a mountain of dull evidence. Similarly, if one side believes it has a great rebuttal to opposing evidence and that rebuttal will improve its case, it may consent to the admission of opposing evidence so that it can dramatically present its rebuttal.
A party may decide not to bring a motion in limine if she thinks it is likely to lose. In the weeks leading up to a trial, an attorney is often very busy, and adding additional motions to write and defend is an incredible burden. As a result, an attorney may prioritize the preparation of witnesses and exhibits over a motion with little chance of success. But parties may also make motions in limine, even if they think they will lose, as a way of preserving the issue of the evidence’s admission for appeal.