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