Episode 18. Motions in Limine

In this episode of Coverage Counsel Is In, Robert Sallander discusses effective use of evidentiary motions in limine, traps for the unwary, and tips for making MILs that win.

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Transcript

Hello everybody, thanks for tuning in to Coverage Counsel is in. Today I want to

talk about motions in limine. These are evidentiary motions that you file pre -trial.

In my experience, motions in limine are best used to to keep out evidence in

advance of trial. However, I've recently seen that some people use them, plaintiffs'

lawyers have used them, to try to get an advanced determination that they can get

evidence in a trial. I was surprised to see that.

It happened for the first time just recently when I was set to try a case in New

Jersey State Court. The plaintiff did a motion in Lemony for the court to allow use

of a day -in -the -life video during his opening statement. Well, all that produced

was an objection by us, an opposition to the motion in Lemony, and our own motion

in limine to keep the day -in -the -life video out of evidence altogether. And

So the court was able to deal with that stuff in advance, and there was some

limitation placed on the day in the life video, which probably wouldn't have

happened, but for the plaintiff, in my opinion, jumping the gun,

and saying I want to use this in my opening statement. If he hadn't have,

I don't think we would have necessarily moved in limine to exclude it,

and we would have likely waited on the foundation issues to object to it at the

time of trial. So in another case, this is a federal case that I have in

California, plaintiff has moved in limine not to exclude certain of the defense

evidence, but actually to proper evidence for which no foundation has been established

yet. So in my opinion, when you're doing a motion in lemony, you do it to keep

out evidence, not to get a pre -ruling that evidence you want to offer is

admissible.

Usually a court is not going to rule that certain evidence is admissible before

seeing the foundation, the context, even seeing the purpose for which you want to

use it. So all of that is to say that the best use, at least in my opinion,

about motion and lemony is to keep out evidence.

In particular in coverage disputes, coverage litigation,

or bad faith litigation, a proper and effective use of emotion and lemony is to

keep out the testimony of bad faith experts, particularly Andrew Dawbert or similar

case law. The problem there is that a lot of times the bad faith experts are not

offering testimony based on any objective industry standard,

although they'll say they are, but what they're doing is establishing just what in

their opinion based on their individual experience at maybe the one or two insurance

companies they've worked for should have been the standard.

Well, in my opinion, under Dobbert, that's not good enough. They have to have done

research and have some publication or other generally recognized standard to apply,

not their subjective standard. But I digress. The discussion of Dobbert in the bad

faith context is for another podcast. I really want to get back more generally to

motions and lemony in a generic sense.

The federal rules of evidence do not explicitly authorize in limine rulings,

but the practice has developed pursuant to the district court's inherent authority to

manage the course of trials for it to consider motions in limine and basically give

rulings in advance on evidentiary issues. But there are some tricks to that,

maybe tricks and tips. The motion in limine cannot be too broad.

It needs to focus on specific evidence, specific testimony,

a specific document, a specific thing, and to have a reason attached to it why that

should not come in. If you get too heavily involved in hearsay rules and foundation

for exceptions to the hearsay rule as an example,

the court's going to find it a little bit too involved and will likely deny the

motion in limine without prejudice to raising the objection again when the court can

see the context at trial. A court will will grant a motion in limine,

and thereby bar use of evidence, only if the moving party can establish that the

evidence clearly is not admissible for any valid purpose.

So part of filing emotion and lemony is to show the purpose for which the other

side is using it. For what issue in the case is it relevant?

And is that the only issue in the case for which it's relevant? You need to tell

the court that. The court does not generally encourage the filing of motions in

limine, but you will see in pre -trial orders, both state and federal court,

that because the use of motions in limine is so prevalent, they may set a date for

filing them, they may put limitations on the number of them, and they may put other

requirements. For example, some courts require a separate motion in limine for each

issue, or for each argument, or for each piece of evidence,

or other courts require that all motions in lemony be in a single document.

So you're gonna want to watch out for that.

So the only time you should file a motion in limine is where they are addressed to

issues that can realistically be resolved by the court prior to trial and without

reference to the other evidence that will be introduced by the parties at trial.

So that gets back to be specific as to what the piece of evidence is that you

want to exclude, explain what the purpose or purposes are for it to be used,

and explain precisely why it cannot come in. It's hearsay,

it's not subject to an exception. You have eliminated any evidence of foundation for

an exception by your discovery, so it's not coming in as your argument.

If the court has any question or needs to wait for somebody to testify to lay a

foundation, you're going to lose the motion in limiting.

A lot of courts will require that the parties meet and confer before anybody files

a motion in limine. And this is a hard thing to get lawyers to do, especially when

they're getting ready for trial. But it's something that needs to be done really

after discovery has closed so you don't prejudice us your record where you don't

have somebody coming up with foundation that they missed and you know there's it's

part of educating but I can tell you in the New Jersey case for example one of

the issues was some

government records and what was important about the government records was that if

the plaintiff had been injured by the mechanism indicated or alleged in the case,

the plaintiff would have been listed on this government report.

That was undisputed, it was an unequivocal And it was something that was just a

fact in the case that both sides understood. And this document showed that the

plaintiff was not listed, that a report had been made and the government agency

involved had determined that they should not list that person. Well, that was the

discussion on the motion in Lemony or pre -preparatory to the motion in limine

because the defense argument was you can't make the inference that you want from the

other evidence because the government had determined that this person was not injured

by that mechanism. Anyway, I'm being a little vague there, and intentionally so

because I have to protect the interests of other people. But the point that I want

to make is that because of that meet and confer over motions in limine,

the parties were then better able to understand what the evidence was that was going

to likely come in at trial and also what that evidence might mean,

and that ended up resulting in a settlement of the case on the courthouse steps

where the plaintiff actually learned something that he didn't previously know and

reduced his settlement posture to the point that the case settled for less than a

tenth of what his lowest demand was. And so that was a good result.

And that was precisely because the parties were required to meet and confer about

motions in limine before filing them. So that's all I have to say about motions

in limine today, I think they're a good and useful tool. They help you understand

what the evidence at trial likely will not be,

at least in specific instances. They're not a good tool for determining what the

evidence at trial will be, and they're not a substitute for a motion for summary

management. Thanks for tuning in to Coverage Council is in this week, and we

appreciate all the support we've been getting on LinkedIn and on our other social

media platforms.

We invite you to follow us, including Greenan,

Peffer, Sallander, and Lally on LinkedIn, and please keep submitting the topics that

you would like to hear us address on this podcast and until next week,

Take care. Goodbye