Using Motions in Limine When Parachuting

Submitted by the Trials PAC

By: Joyce Gist Lewis, Shingler Lewis, Atlanta, Georgia

At the February 2017 Business Meeting in Fort Lauderdale, Florida, members of the Trials PAC and in-house counsel from The Krystal Company/On the Border (Sloane Perras), and the Federal Deposit Insurance Corporation (J. Stuart Tonkinson) shared their advice and experience for achieving a successful outcome when new counsel must be brought in on the eve of trial. Among the takeaways, motions in limine can be used in many jurisdictions to narrow the issues for trial, even where the predecessor counsel failed to raise the issue on a motion for summary judgment. This article will address considerations for counsel in deciding how to use motions in limine when parachuting into a case for trial.

Avoiding Prejudice

Motions in limine are commonly used to exclude evidence so overwhelmingly prejudicial that a limiting instruction would not cure the harm if the jury was made aware of it. Properly used, motions in limine can protect parties from the introduction of prejudicial issues that they do not want discussed in front of a jury, or even broached in voir dire. Prime examples are the availability of liability insurance, the existence of a contingent fee contract, and a party’s criminal record. If trial counsel is aware that opposing counsel routinely uses voir dire to preview inflammatory evidence, the motion in limine can also be an effective tool for obtaining an advance ruling that limits opposing counsel’s use of the tactic.

Addressing Issues Of Substantive Law Not Raised In Dispositive Motions

Motions in limine can be particularly effective when parachuting if the new trial counsel becomes attuned to an issue of substantive law that was not raised with the court in dispositive motions by predecessor counsel. For example, a causation claim or defense may be eliminated by means of a motion in limine where the party seeking to offer such evidence has failed to timely disclose the theory, or when the evidence supporting the theory should be deemed inadmissible. Used in this way, a motion in limine effectively acts as a motion for partial summary judgment.

Notice To The Court of Important Issues

In addition to effectively limiting the evidence to be heard by the jury at trial, the mere filing of a motion in limine can benefit the trial practitioner by requiring the Court to focus on issues of interest in a particular case and by requiring the opposing party to disclose, through its response, its rationale for introducing the evidence at issue. Even where a motion in limine is denied, the motion gives the moving party an opportunity make the court aware of an issue that is expected to be contentious at trial, and is likely to elicit some indication of the court’s inclinations with respect to the exclusion or admission of that evidence at trial, which can help in trial preparation.

Possible Notice To Opposing Party of Trial Strategy

As a result of bringing a motion in limine, the moving party will by necessity be highlighting the importance of evidence opposing counsel may not have been aware of or focused on for purposes of preparing for trial, especially if the predecessor counsel approached the case differently. Trial counsel should consult with in-house counsel regarding the risks and benefits of each motion in limine in order to determine whether the benefit of obtaining a ruling to exclude prejudicial evidence in advance outweighs the risk of giving notice to opposing counsel of a “smoking gun” or a dangerous witness.

Pre-trial rulings

In federal court, Fed. R. Evid. 103(a) provides that

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

In certain state courts, the law may likewise provide that a motion in limine is sufficient to preserve the moving party’s objection with no need for additional objection in the presence of the jury. For example, Georgia law provides that in the event that the Court denies a motion in limine, there is “no reason for another objection at trial in order to preserve the denial of the motion on appeal” as “[a]ll the purposes of an objection have already been fulfilled by the proceedings on the motion in limine.” Harley Davidson v. Daniel, 224 Ga. 284, 286, 260 S.E.2d 20 (1979). Courts have also found that this reasoning should apply where a motion in limine to suppress evidence is granted, but the opposing party reveals the evidence to the jury notwithstanding the Court’s order. See e.g., Reno v. Reno, 249 Ga. 855, 856, 295 S.E.2d 94 (1982) (“To hold otherwise, and require the successful movant to object when evidence encompassed by the motion in limine is nevertheless offered at trial, would defeat the purpose of the motion in limine, as the movant would be forced, in the presence of the jury, to call special attention to prejudicial evidence which the trial court had previously ordered to be excluded from the jury’s consideration.”).

Joyce Gist Lewis is the Managing Partner of Shingler Lewis in Atlanta, Georgia. Her practice is focused on trial and litigation of complex cases.