by Hon. Randall H. Warner
Hon. Randall H. Warner
is an Arizona Superior Court Judge
in Maricopa County.
This column provides tips from judges
on civil practice. If there are practice tips
you’d like covered – or if you are a judge
who would like to write a column –
write to firstname.lastname@example.org.
CIVIL PRACTICE POINTERS
Motions in Limine
Motions in limine are all
over the map. In many trials, we get none.
Occasionally, we get dozens, which is
hardly helpful. Some are short and snappy,
while others read like a summary judgment
motion. Many are long on computer-generated string cites but short on explaining
exactly what evidence they want precluded.
This column provides some advice on
making the most of motions in limine.
Pick your battles. Motions in limine are
supposed to be for evidence that, if wrongly
admitted, would cause a mistrial. I would
broaden that to include critical evidence,
the admissibility of which can be decided
without hearing trial testimony. But stop
there. As with all advocacy, the more you
can focus on a handful of strong arguments,
the more likely you are to succeed.
We all know motions in limine are sometimes used to educate the court on anticipated evidentiary issues. Fair enough—no judge likes to be surprised
with an important, difficult evidentiary issue at trial. But there’s an
easy workaround that doesn’t bog down the court with motions: File
a bench memorandum that discusses evidentiary issues likely to arise at
trial and provides legal authority for your position.
Specify the evidence to be excluded. A motion in limine usually seeks to preclude evidence, so you have to be clear about
the evidence to be precluded. If the court can’t articulate an in
limine order, it’s likely to deny the motion. And don’t ask to
preclude “any document that in any way refers to … .” Rather,
specify the exact documents (by exhibit or bates number) that
should be precluded. Testimony is a little more difficult, because
you don’t know what precise questions and answers will be given
at trial. But still, you better your chances if you can articulate the
offending testimony with precision.
Provide enough background to understand the issue, but no
more. Many motions in limine seek to preclude evidence on
relevance or Rule 403 grounds. The court has no way of gauging
these things without context, so you need to provide some
how the evidence
fits or doesn’t fit
in the overall story
at trial. But don’t
overdo it. Too
and you risk losing
The same is true
of motions arguing
and other things.
Brevity is import-
ant, but you need
to provide enough
background so the
court can under-
stand the issue.
Cut the boilerplate. Far too
many motions waste precious space on legal
standards the court already knows. Most
motions in limine don’t involve novel legal
propositions, but rather apply well-known
law to the evidence in your case. For example, you don’t need to explain Rules 401
and 403 or provide hornbook-style quotes
from the case law. The judge already knows
what relevance and unfair prejudice are.
Show why addressing the issue pretrial
is critical. The default position of most
judges is to deny a motion in limine without prejudice to the objection being made
at trial. So know that, just by filing a motion
in limine to exclude evidence, you have an
uphill battle. The most important thing you
can do in such a motion is show the court
why this particular evidentiary issue can be
and must be resolved before trial.
You need to
how the evidence fits
or doesn’t fit in the
overall story at trial.
But don’t overdo it.