Motions in Limine: The Plaintiff’s Guide to Using Preliminary Evidence Rulings to Win the Trial

 

How to Use Motions in Limine to Exclude Prejudicial Evidence and Introduce Helpful Facts in Personal Injury Cases

 

Most plaintiffs and defendants file motions in limine soon after the court schedules a trial.  

 

But what are these motions? 

 

And what impact do the court’s decisions to grant or deny these motions in limine have on recovering money damages? 

 

This article discusses motions in limine, focusing on how they can help you with your tort claim (personal injury or workers compensation). These motions allow you to control the evidence and arguments the jury hears when deciding your case. 

 

Introduction to Motions in Limine

 

Few things are certain in personal injury litigation. 

 

But there is one thing you can count on. The insurer will search for every negative piece of information against you and try to use that information to blame you for the car crash or explain why you do not deserve the money damages you seek. 

 

Many insurance defense attorneys argue every possible defense with the hope that one of the defenses sticks. This approach is called the “kitchen sink” defense. 

 

The derogatory information is often irrelevant and has nothing to do with your injury lawsuit. But it can influence the jury by painting you in a negative light and shifting the jury’s attention from the truth that matters.

 

Fortunately the law of evidence recognizes that courts should keep out some facts. Preventing the defense from mentioning or referring to irrelevant or unfairly prejudicial evidence narrows the disputed issues and avoids confusion.

 

A motion in limine is the best method to exclude derogatory information that could bias or prejudice the jury at trial. You can use this type of motion to keep the jury focused on what matters: how the defendant’s negligence harmed you and how much money the jury should allow to make you whole.

 

A motion in limine requests a preliminary decision on an evidence objection or an offer of proof. These motions can help you win your case before the trial begins. If you can exclude prejudicial facts, you increase the likelihood of success at the trial. 

 

The Latin expression “in limine” means “at the threshold.” Courts use the term to refer to any motion made before or during the trial to exclude anticipated prejudicial evidence before a party offers or mentions the proof. (See Luce v. United States, 469 U.S. 38, 40 n. 2 (1984)).

 

You can use motions in limine to get a ruling excluding specific evidence (meaning it is neither referred to nor offered at trial) or allow for the introduction and inclusion of evidence.

 

Parties in all types of litigation – civil, criminal, and administrative – use motions in limine to strengthen their case or weaken their opponent’s. And there is a good reason for this. When you properly use these motions for evidence rulings in advance, you can create leverage in settlement negotiations and trials.

 

Keep reading to learn more.

 

If you have questions about evidence law or want a free consultation with a top-rated personal injury lawyer in Virginia, call me (804-251-1620 or 757-810-5614) or complete the contact form on this page. My firm is ready to help you and your family.

 

 

What is the Definition of a Motion in Limine?

 

Black’s Law Dictionary (Tenth Edition) defines a motion in limine as “A pretrial request that certain inadmissible evidence not be referred to or offered at trial.”

 

What is the Purpose of a Motion in Limine?

 

The primary purpose of a motion in limine is to prevent evidence that is unfairly prejudicial at trial. 

 

Courts, litigants, and the rules of evidence recognize that some evidence is so prejudicial that the prejudice cannot be removed by refusing to admit the evidence after a party objects in front of the jury. 

 

Simply asking about, raising, mentioning, or referring to some evidence during voir dire, opening statements, or questions during the trial (direct examination or cross-examination) can be unfairly prejudicial to the plaintiff and prevent the plaintiff from getting a fair trial. Once the jury hears about the issue, it will be unable to forget it even if the court excludes the evidence. And this inability to ignore the harmful evidence could impact the jury’s verdict.

 

A motion in limine can prevent this information from going before the jury.

 

Other benefits of submitting motions in limine to the court include:

 

• To help the litigants and the court plan and organize the case. For example, attorneys can determine what questions to ask based on what evidence the court will likely admit or exclude.

 

• To exclude irrelevant or inadmissible evidence from the trial.

 

• To bar expert testimony offered by the opposing party if there is no adequate basis for the opinion. A plaintiff can indeed use cross-examination to discredit an expert witness. But the Virginia Supreme Court has stated that a court may not abdicate its responsibility to ensure that the jury considers only properly admitted evidence. A court should exclude expert opinion evidence based on assumptions not supported by the record.  

 

• To encourage settlement. A key evidentiary ruling can motivate the parties to settle the case before trial. For example, in a recent product liability action I handled, the parties resolved the lawsuit when the judge denied the defendant’s motion in limine regarding video evidence. 

 

• To narrow the issues at trial.

 

• To prevent trial delay and encourage efficient and speedy trials.

 

• To avoid unnecessary expenses (additional attorney’s fees, expert witness costs, lost productivity from the jurors, etc.)

 

• To educate the judge about troublesome evidence.

 

Does the Court Have the Authority to Grant a Motion in Limine? 

 

Some states have statutes or rules governing motions in limine. 

 

But many jurisdictions – including federal courts, California, and New York – do not. 

 

I will discuss a court’s power to exclude evidence in limine in the courts where I practice the most – federal and state courts in Virginia (and administrative agencies). 

 

Authority for Motions in Limine in Federal Courts

 

No statute grants federal courts the power to decide motions in limine.

 

But judicial precedent gives federal district courts the power to issue preliminary rulings on the admissibility of evidence. Moreover, existing case law holds that federal courts can decide motions in limine under their inherent powers to control and manage the litigation, admit evidence, and conserve judicial resources.

 

Authority for Motions in Limine in Virginia

 

In Virginia the court’s authority to decide motions in limine varies depending on whether the trial is civil or criminal. 

 

Motions in Limine in Civil Litigation in Virginia

 

Judicial precedent in Virginia recognizes that courts have the power to make preliminary rulings on the admissibility of evidence and competency of witnesses in civil trials.  

 

In Harward v. Commonwealth, 5 Va. App. 468, 364 S.E.2d 511 (1988) the Virginia Supreme Court stated:

 

Motions in limine have gained wide usage and acceptance. They serve worthwhile functions of narrowing issues, preventing trial delay, avoiding expense, and promoting judicial efficiency. Their legitimate use should be encouraged. However, abuses lead to additional expense, delay, duplication of judicial and legal time and effort, and in some instances confusion. Motions in limine are not properly used to exact from the court nonbinding, advisory, or conditional rulings. Many issues can be definitively ruled upon pretrial. Others may more appropriately, or must by necessity, be ruled upon contemporaneously during trial.

 

Motions in Limine in Criminal Law in Virginia

 

Rule 3A:9 of the Rules of Supreme Court of Virginia is entitled “Pleadings and Motions for Trial; Defenses and Objections.”

 

This rule permits the parties in a criminal proceeding to submit motions in limine and the court to decide them.

 

What is the Standard to Succeed on a Motion in Limine?

 

The law of evidence favors admissibility.

 

As a result, judges deny many motions in limine. Or defer their rulings to the trial to better understand the evidence’s context with the other proof. 

 

You can, however, succeed on a motion in limine under Federal Rules of Evidence 402 and 403.

 

The starting point to exclude harmful evidence from the trial is relevancy.

 

Federal Evidence Rule 402 states that irrelevant evidence is not admissible. Evidence is relevant only if it tends to make a fact more or less probable than it would be without the evidence, and that fact is consequential in deciding the lawsuit.

 

Often harmful evidence is relevant, and your argument for restricting it under Rule 402 will fail. But there is another rule of evidence you can rely on to persuade the court.

 

Federal Evidence Rule 403 states that “the court may exclude relevant 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.” Your argument in support of (or against) a motion in limine should focus on these factors.

 

Many states, including Virginia, have evidence rules that track the Federal Rules of Evidence.

 

For example Virginia Rule of Evidence 2:402 states that all relevant evidence is admissible, except as otherwise provided by the U.S. Constitution, the Virginia Constitution, the Rules of the Supreme Court of Virginia, or other evidentiary principles. Evidence that is not relevant is not admissible.

 

And Virginia Rule of Evidence 2:403 states that the court may exclude relevant evidence if “the probative value of the evidence is substantially outweighed by (i) the danger of unfair prejudice, or (ii) its likelihood of confusing or misleading the trier of fact” or if “the evidence is needlessly cumulative.”

 

Again, your arguments for or against a motion in limine should address these factors and provide relevant facts.

 

Motion in Limine Examples for Personal Injury Lawsuits

 

Motions in limine are routine in personal injury litigation.

 

Let’s take a closer look at the evidence that plaintiffs and defendants often ask the court to keep out of the trial.

 

Evidence You May Want to Exclude by Motion in Limine if You are the Plaintiff

 

Here is a list of the types of evidence you might want to be excluded by motion in limine if you are the plaintiff in a personal injury trial:

 

• Attorney/client diaries and journals: Ask the court to exclude any reference to documents you kept at your attorney’s request. These documents fall within the attorney-client privilege and the attorney work product doctrine.

 

• Disability payments: The defense might try to introduce evidence that you received workers compensation benefits (temporary total disability, permanent partial disability, etc.) or disability payments through other programs to persuade the jury to award you less. The collateral source rule prohibits this evidence.

 

• Evidence of lack of compliance with medical care: Ask the court to exclude evidence that you missed medical appointments or refused to have surgery such as a lumbar fusion. The defense might argue that you would have complied with or followed all medical advice if you are as injured as you allege.

 

• Evidence of past injuries or medical treatment unrelated to the current case: In Virginia the court should exclude evidence of past injuries if there is no evidence that the past injuries are connected to the injury at issue in the present lawsuit.

 

• Evidence of the financial condition of the defendant or the insurer: The defense might try to persuade the jury not to award the damages you seek because the insurer’s financial condition is weak or the defendant driver does not have much money or assets. These are factors for you to consider when determining whether to settle your case before trial. They are not factors the jury should hear.

 

• Evidence of third-party guilt (other defendants): Multiple parties (persons or companies) could be liable for your injuries. For example, you may file a claim against the tire manufacturer and the tractor-trailer driver in a truck accident case or multiple contractors in a construction accident claim. Or you could file a complaint against multiple health care professionals in a medical malpractice lawsuit – including the hospital. Suppose you settle the claim against one defendant and go to trial against another. In that case, the remaining defendant may try to introduce evidence that the other defendant (the one not there) is responsible. Proof of the responsibility of an “empty chair” non-party is inadmissible in Virginia.

 

• Evidence of your wealth: The defense might tell the jury it should not award significant damages to you because you are financially secure without a judgment.

 

• Evidence that the defendant has never caused an injury before. This is not relevant to your claim. 

 

• Evidence that you gave informed consent to a medical procedure in a medical malpractice case that does not allege a lack of informed consent. Virginia courts have stated that such evidence could cause a jury to conclude that consent to the surgery was consent to the injury.

 

• Evidence that you were not wearing a seat belt when the crash occurred: Many states, including Virginia, have a statute requiring all drivers and passengers to wear a seat belt when in a moving vehicle. Evidence that you were not wearing a seat belt at the time of the crash is not admissible for any purpose in Virginia. Va. Code Ann. Section 46.2-1094.

 

• Expert witness testimony: The defense may introduce expert witness testimony from medical providers (orthopedic surgeons, psychologists, psychiatrists, chiropractors, pain management doctors, etc.) and accident reconstruction experts. Review the disclosures from these witnesses to determine if you can attack the admissibility of this evidence. For example, the court will not allow evidence if the expert witness does not have the proper qualifications or if the report assumes facts that are not in evidence (or does not consider all relevant factors).

 

• Expert testimony that is cumulative: The defense may hire multiple expert witnesses to try to overwhelm the jury with numbers. The court has the power to exclude testimony from some of these expert witnesses if it believes the witnesses that have already testified addressed the issues completely.

 

• Family’s medical history: The defense might try to use family history of osteoarthritis or degenerative disc disease, heart disease, or mental health problems (depression, anxiety, or Post Traumatic Stress Disorder (PTSD)) to imply that you would have had these conditions regardless of the car crash.

 

• Hearsay evidence generally 

 

• Hearsay in the medical records: Some doctors will offer testimony based on statements from other people found in the medical records. These statements are hearsay, and you might be able to limit unfavorable medical evidence with a motion in limine.

 

• Insurance coverage or payment: Evidence of insurance (auto liability, workers comp, long term disability, Social Security Disability, etc) is inadmissible at trial. For more information on this topic, read my article on the collateral source rule.

 

• IRS problems: Tax liens or a failure to file income tax returns are irrelevant in an injury lawsuit.

 

• Litigation funding: The insurer might present evidence that you received a cash advance or funding from a litigation finance company to prosecute your lawsuit, mainly if your case’s theme focuses on you being one individual versus a large company (“David vs. Goliath”). Try to exclude this information (if applicable).  

 

• Make and model of your vehicle: Some jurors may assume that you were responsible for the accident if you drive an automobile that is known for its speed or risk. For example, the jury may presume that you were speeding if you drive a sports car.

 

• Past alcohol use

 

• Past bad acts or evidence of bad character: This evidence is usually inadmissible “because it tends to draw away the minds of the jury from the point in issue, and to excite prejudice and mislead them.”

 

• Past criminal convictions: The insurer might use your criminal past to persuade the jury that you are not a credible witness or are not likable and deserve less money for your injuries. Read this article for information on how the defense might try to use your criminal past against you.

 

• Past drug use

 

• Past employment issues (disciplinary actions, terminations, or EEOC complaints) that you have had: The defense’s goal in presenting this evidence in a personal injury case is to attack your past and future wage loss claims and to attack your likability.

 

• Past traffic citations: How you have driven in the past should not matter if the other driver’s negligence caused the present crash.

 

• Polygraph examinations: Though not as standard in personal injury cases as in criminal cases or workplace investigations, polygraph test results are sometimes an issue. In Virginia the results of polygraph examinations are not admissible under Rule 2:402.

 

• Portions of testimony given during a de bene esse deposition

 

• Prior cases: The defense might introduce evidence of past civil lawsuits or workers compensation settlements to imply that you are a frequent litigant that uses lawsuits to earn money. The court should exclude evidence of prior claims you have made. 

 

• Prior crashes involving family members: This information is irrelevant if these persons are not claiming damages in your lawsuit.

 

• Proof of contributory negligence: Insurance companies often allege that the accident victim somehow contributed to their injuries. Unless the defendant can offer some evidence that you contributed to the accident and injuries (you were on the phone or were texting, etc.), file a motion in limine to exclude these references to or claims of contributory negligence.

 

• Recorded statement to an insurance adjuster: The claim adjuster might ask you to give a recorded statement soon after the car accident and before hiring an attorney. Don’t give one (see this article to learn why I recommend not giving a recorded statement). But if you already have provided one, file a motion in limine to exclude it if your comments hurt your case.

 

• Smoking or Tobacco use: The defense (or its medical experts) might use your smoking habit to explain why you have not recovered as quickly or as well as it would like.

 

• Statements made during settlement negotiations or a mediation conference (including offers to settle): Courts encourage litigants to try to settle their disputes outside of court – and many do (more than 90 percent). Alternative dispute resolution – either mediation or informal (direct) negotiation) – works mainly because the parties can be honest about the strengths and weaknesses of their claims and defenses. This honesty is possible because litigants know the other side will not use statements made during these conversations against them at the trial.

 

• Taxation of the verdict: Any evidence that your judgment would or would not be taxable is irrelevant and prejudicial. Verdicts for compensatory damages in personal injury cases and workers comp benefits and settlements are not taxable.

 

• Telephone recordings: If the defendant recorded a telephone conversation without your knowledge, and you made statements that could hurt your case, submit a motion in limine. In Virginia recorded telephone conversations are inadmissible unless both parties knew it was being recorded.

 

• Testimony from specific witnesses

 

• The date you hired an attorney to protect your rights

 

• Unavoidable accident: Ask the court to exclude any statements or implications that the crash was inevitable.

 

• Undisclosed evidence: Good attorneys can often deal with bad facts. But surprises are different. Ask the court to exclude any witnesses, documents, photographs, videos, or other evidence not disclosed during the discovery process (and make sure you serve interrogatories and requests for production of documents).

 

• Unemployment benefits: The defense might offer evidence that you received unemployment to convince the jury to award you less in damages. Try to keep this information out of the trial.

 

• Unrelated injuries or medical treatment received after the auto accident that is central to the lawsuit: The defense will try to pin your damages on later accidents if that evidence exists. You should be able to keep this evidence out of court if you did not aggravate or exacerbate the injuries you seek damages for.

 

• Your violation of a statute: The defense might offer evidence that you were speeding or not paying attention to the road when the crash happened. This evidence could set up a contributory negligence defense (in Virginia you cannot recover damages if your negligence contributed to the injuries). Move to exclude it.

 

Common Items the Defendant Wants to Exclude by Motion in Limine

 

In my experience insurance defense attorneys file too many generic, boilerplate motions in limine. Instead of making only the arguments they can win, they try to overwhelm the plaintiff or get lucky with a ruling that removes strong evidence on liability or damages.

 

But there is some evidence for which the defense might have a legitimate argument to exclude.

 

Here is a list of evidence the defendant driver (or their insurer) is most likely to be able to exclude with a motion in limine:

 

• Alcohol odor: Evidence that the defendant driver had consumed alcohol is usually inadmissible unless other evidence shows that the drinks had impacted the driver’s ability to act. For example, blood alcohol level testing above the legal limit will open the door for other evidence on intoxication (though you may not need it if you are the plaintiff).

 

• Expressions of sympathy: Your doctor might say sorry for a poor outcome after a surgery or procedure. Or the negligent driver might say he wishes no one got hurt after the crash. These statements of sympathy are inadmissible at trial.

 

• Minor’s use of a cell phone or riding with too many passengers if the minor is the defendant 

 

• Proof of similar incidents

 

• Subsequent drunk driving: Evidence that the negligent driver continued to drink and driver after the crash causing your injuries is inadmissible unless you seek punitive damages.

 

Is the Court’s Ruling on a Motion in Limine Final?

 

No, the court’s grant or denial of a motion in limine is not a final ruling. Instead, it is considered interlocutory (provisional).

 

The court may change its rulings on motions in limine at the trial. For example, it is common for judges to reverse or modify their initial ruling on admissibility once they understand the evidence’s context within the case. I’ve seen judges change their minds three or four times before issuing a “final ruling” on a specific piece of evidence. 

 

Is There Any Disadvantage to Filing a Motion in Limine as a Plaintiff?

 

Usually, there is no disadvantage to filing motions in limine to restrict specific evidence from trial – as long as you provide legal and factual support for them. And so long as the evidence matters. 

 

Your written motion in limine should identify the specific evidence you want the court to exclude and provide a one to a two-paragraph explanation of why. 

 

There are, however, three potential weaknesses in trying to exclude evidence in limine.

 

First, a motion in limine reveals what evidence concerns you the most. Then, the insurer can use this information to develop its trial strategy.

 

Giving the insurer notice of your evidentiary concerns is usually not a problem in auto accident or work injury litigation. Attorneys prosecute these cases often. Thus, the parties know the issues, and there will be few surprises.

 

Second, winning a motion in limine can cause complacency during trial planning. And this complacency can hurt you. 

 

The court’s ruling on a motion in limine is provisional. It can – and often does – change once the judge understands how the evidence in question fits within the trial as a whole. 

 

You must prepare for the possibility that the court will allow evidence that it refused to admit initially. And have enough flexibility to address that evidence during your case presentation. 

 

Third, submitting too many pre-trial motions (including motions to compel, dispositive motions, and motions in limine) can irritate the judge. This irritation could result in the judge losing patience and ruling against you on close calls.

 

Your legal pleadings impact your credibility.

 

The court is more likely to grant your motions if it believes that you only try to exclude evidence when you have a good, well-reasoned position rather than trying to exclude evidence that is almost always allowed. Only litigate a motion in limine if the evidence and issue matter.

 

What Should I Do if the Court Denies My Motion in Limine? 

 

If the court denies your motion in limine, renew your objection to the defense’s evidence at the trial. The court may modify or change its ruling entirely based on what has taken place at the trial thus far. 

 

Further, some jurisdictions require a party to renew its objection to evidence at trial – or else you waive the issue on appeal. The rationale for this rule is that a motion in limine is an advisory or provisional ruling, not a final ruling. 

 

What Should I Do if the Court Grants the Defendant’s Motion in Limine? 

 

Similarly, you must act if the court grants the defense’s motion in limine and you want to present the evidence in question.

 

First, ask the court to reconsider its initial ruling on the motion in limine. Then, depending on the other evidence presented by the parties at the trial, the court may modify its decision. 

 

If the first method doesn’t work, proffer the evidence outside the jury’s presence. A proffer is an offer of proof – you tell the court what the evidence would show and why the court should admit it.

 

An appellate court might find that you waived any argument that the trial court erred by excluding specific evidence unless you renew make an offer of proof at the trial. 

 

Win the Motions in Limine, and You Will Be in a Better Position to Negotiate a Fair Settlement or Win at Trial

 

A motion in limine is a powerful weapon for plaintiffs and defendants.

 

Experienced personal injury attorneys often use an omnibus motion in limine to exclude all harmful evidence, strengthen their clients’ bargaining positions, and win at trial.

 

If you have questions about evidence law or would like to schedule a free consultation, call me today: (804) 251-1620 or (757) 810-5614. See why my fellow attorneys and past clients have voted me one of Virginia’s best plaintiffs’ lawyers – and what I can do for you and your family after a severe injury changes your life.