The Unconscionable Overuse of the Motion in Limine
Motions in limine are pretrial motions filed to ask the judge to rule in advance on the admissibility of some evidence. “In limine” is Latin for “on the threshold”. A good way to see such motions is simple attempts to prevent evidence from getting in the door.
These motions should be used sparingly. Motions in limine should be reserved for evidence that 1) the other side is highly likely to try and introduce and 2) which would be very prejudicial and damaging if it were inadvertently disclosed to the jury. As we discuss below, they should only be used when an issue is likely to come up and trying to resolve it in the moment will be highly prejudicial or unduly cumbersome or complicated. Motions in limine provide a method to get advance rulings to keep out evidence that is so antithetical to the concept of a fair trial that even the attempt to get this evidence in front of the jury could permanently prejudice the trial process and result in a mistrial.
In my last several trials, I have noticed that counsel for one party or the other tends to get a little carried away by the motion in limine process. We will see motions to exclude any mention of insurance in a tort case, even where there has been no suggestion by the other side that one of the exceptions to Utah Rules of Evidence Rule 411 exists which would allow the admission of such information. Another example are motions to exclude settlement negotiations pursuant to Rule 408. Everyone knows that Rule 408 excludes mention of settlement or plea discussions unless some very narrow and specific exceptions apply. When I see motions in limine that seek exclusion of evidence that neither party intends to introduce, it leads me to suspect that opposing counsel has one of two improper motives.
Often the purpose is simply to “milk the file” by having a low-level associate file every possible motion he or she can think of solely to inflate the client’s bill. This is, of course, morally and ethically wrong. For obvious reasons, there is no such thing as milking the file on the Plaintiff’s side of personal injury cases, because the attorney is not being paid by the hour. Any wasted time the Plaintiff puts into a case is, well, wasted. Frankly, we see this often from defense counsel in medical malpractice, construction defect, complex commercial litigation or other specialized cases where the stakes tend to be higher. Insurers (or occasionally large corporate clients) are more willing to loosen the purse strings for defense costs when they think an adverse verdict could be huge. If you ever receive an opposing motion, and immediately think “wait, isn’t what they are trying to prevent already against the rules? I haven’t suggested that I intend to introduce such information. This motion seems pointless”, you are probably dealing with a milker.
However, there is another (and more nefarious) reason for filing such motions. Some lawyers will take this approach because they think that if they inundate you with motions, you will be so distracted that you will not prepare properly for trial. I have even seen this during trial, when opposing counsel has an associate sit back at the office, waiting to file motions based on issues that came up at trial that day. These motions will either be filed at around 7:00 pm (i.e. right when I get back to my hotel to prepare for the upcoming day of trial) or at 5:00 am (when I am getting up to go over the examinations I will conduct that day).
When this happens, it is embarrassing. “Burying the other side in paperwork”, may sound good on TV, but for a real trial lawyer to take this approach suggests an attempt to cover for shoddy lawyering, a bad case, or both. If your opponents must resort to brute-force motion practice to find an advantage, they probably do not have very good arguments or compelling evidence.
In the case of what I call “motions for counsel to comply with pre-existing rules”, my response is simple. I tend to respond in bulk (that is, by filing one memorandum in response to several motions) and in two pages simply point out that the other side appears to be asking the court to order the parties to follow the plain text of the Utah Rules of Evidence or Civil Procedure. I indicate that I will gladly so stipulate, and that I assume that opposing counsel will stipulate to this as well. As such, there is no need for the court to issue a special ruling on these motions. This approach seems to relieve judges, as it allows them to dispose of several motions without argument or any actual ruling from the court.
In the case of what I’ll refer to as “motions to rudely disturb opposing counsel’s slumber”, I tend to take one of two approaches. Occasionally, the case we are dealing with is big enough to justify having our own associate basically on-call back at the office to respond to these motions quickly. I will admit, it is impressive to walk into court with a written response printed out and ready to go a mere two hours after the initial motion was filed (and still look fully prepared and well-rested). However, this is often not necessary or economically feasible. I sense that judges have about as much time as counsel to review these last-minute motions, and I have not yet met a judge that expects opposing counsel to respond to them point-by-point.
Also, many Plaintiff cases are not large enough to justify a massive trial team. When the 5:00 am motion comes up in a smaller case, I simply stand up (taking a few more seconds than necessary to button my jacket – a respectful indication of my exasperation) and give the judge a look that suggests that, of course I have not responded to their irresponsible and reprehensible “motion”. It was filed while I was enjoying the sleep of the truly righteous and just. However, we are willing to discuss whatever ridiculous diatribe opposing counsel has vomited onto the page at 5:00 am, and we are prepared to respond on the fly if the court deems it necessary, because we are that good. Obviously, I don’t say that to the court in so many words, but I think a good deadpan look in this situation is worth a thousand words, don’t you?