Drafting effective motions in limine

I. Introduction

Motions in limine can be a drag to draft, especially when you are deep into trial preparations and want to focus on crafting your opening statement or cross examination of an expert witness. However, motions in limine serve a critical function for trial, as they help frame your case and place necessary limitations on evidence. They can also assist pre-trial in reviewing the case facts and determining how to proceed with the presentation of the case. With careful planning, motions in limine can become an integral part of your pre-trial strategy.

II. Overview of motions in limine

Unlike other motions, there is no specific Code section that gives rise to a motion in limine. Nor are motions in limine governed by the notice periods prescribed by the California Rules of Court. Instead, look to case law, Local Rules of Court, and the Evidence Code for context.

Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659 remains an authority on the purpose of motions in limine:

"Motions in limine are a commonly used tool of trial advocacy and management in both criminal and civil cases. Such motions are generally brought at the beginning of trial, although they may also be brought during trial when evidentiary issues are anticipated by the parties. In either event, they are argued by the parties, either orally or in writing or both, and ruled upon by the trial judge. The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party. A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial. 'The advantage of such motions is to avoid the obviously futile attempt to "unring the bell" in the event a motion to strike is granted in the proceedings before the jury.' Motions in limine serve other purposes as well. They permit more careful consideration of evidentiary issues than would take place in the heat of battle during trial. They minimize side-bar conferences and disruptions during trial, allowing for an uninterrupted flow of evidence. Finally, by resolving potentially critical issues at the outset, they enhance the efficiency of trials and promote settlements." (Kelly, supra, at pp. 669-670.)

Kelly goes on to discuss that proper motions may seek to exclude hearsay, irrelevant evidence, items subject to Evidence Code section 352, or admissions made during discovery. Motions in limine should not seek to broadly exclude documents, statements, or witnesses that do not otherwise specifically identify actual evidence.

With these principles in mind, be sure to also check your local rules of court and courtroom rules for further guidance on motions in limine.

III. Drafting motions in limine

Procrastination is not your friend when it comes to motions in limine. Consider making a running list of items that you would like to see excluded at trial while working through discovery. This could include attorney referrals to physicians, liens, traffic collision reports or incident reports, photographs of the incident, prior or subsequent incidents, sub rosa footage, or opinions of experts. By starting early, you will not be rushing closer to trial and can also take the time through discovery to consider how this evidence will play out at trial if it is not excluded.

Creating your motion list early will also assist you in acknowledging the "warts" of your case. No case is perfect, but by knowing your danger points, you can figure out how to embrace them and keep moving forward in the event you cannot exclude them at trial (or, if your warts are too big to overcome, determine the appropriate settlement value).

One example to illustrate the importance of setting up discovery for trial if a motion in limine is not granted is the use of liens in medical treatment. Depending on your judge, a routine motion in limine to exclude the mention of liens may or may not be granted. Recognizing that this evidence may come in at trial, you can prepare for each alternative during discovery by asking doctors during deposition if they take liens and the purpose of lien treatment in personal injury cases to diffuse the issue at trial.

With all motions in limine, it is important to keep your papers succinct and to the point. This is especially important considering your judge could have 10-20 motions to read and review in a very short amount of time before trial commences. Be clear in what you are requesting (see Kelly, above), and double-check you are following all local and courtroom rules in filing your motions so they are not denied on procedural grounds.

IV. Arguing motions in limine

By the time you are ready to argue your motions in limine, you are in the home stretch. Prepare for the hearing by reviewing your motions and consider creating a chart to keep track of rulings since the argument can move quickly. An easy-reference table could include your main points on the moving papers, what you anticipate the defense will say, and any rebuttal arguments, along with a space to notate the court's ruling. Do not feel the need to repeat everything in your papers, but do make your record to preserve it for any potential appeal. If you have already thought of what will happen if the evidence is not excluded, however, you will know when to stop and to accept that the evidence will be coming in.

V. Conclusion

Motions in limine are exclusionary in nature and can help focus your case. By stepping back and looking at the bigger picture during litigation, you can determine what you might want to exclude, but also how to deal with the same evidence if it is ultimately allowed in at trial. This will give you the confidence you need to handle every evidentiary aspect of your case, and ultimately set you up for success.