The Trial Practice Tips Weblog

A Sample Motion in Limine: Defense Version

Here's a motion in limine from an old case in which I assisted in representing the defendant. I've omitted the case style and other identifying features; obviously, each case is different, and I'm posting this for illustrative purposes only.

Tomorrow I'll post a plaintiff's motion in limine.

Effect of In Limine Rulings on Trial Objections

Rulings on motions in limine remain subject to reconsideration by the court throughout the trial. Whether granted or denied, a motion in limine generally does not preserve issues for review. See, e.g., Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co., 163 Ill. 2d 498, 502, 206 Ill. Dec. 644, 645 N.E.2d 896 (1994) (denial of motion in limine in a civil case does not preserve the issue for appeal if there is no contemporaneous objection at least the first time the evidence is offered at trial); Konieczny v. Kamin Builders, 304 Ill. App. 3d 131, 709 N.E.2d 695, 237 Ill. Dec. 440 (3d Dist. 1999) ("whether granted or denied, a motion in limine does not preserve issues for review").

The bottom line: If a motion in limine seeking exclusion of evidence is denied, the moving party should still object to the evidence at trial in order to preserve the issue for review.

Motions in Limine Seeking Admission of Evidence

Many think of a "motion in limine" as a motion filed before trial that seeks the exclusion of certain evidence. For example, the plaintiff might file a motion in limine seeking exclusion of testimony of prior unrelated injuries.

Motions in limine can also be used by a party seeking admission of certain evidence. It's a way to find out before trial if certain evidence is admissible. Example: A defendant might file a motion in limine arguing that testimony of a prior related injury should be admitted into evidence.

Case cite for general rules about motions in limine: Department of Public Works & Buildings ex rel. People v. Sun Oil Co., 66 Ill. App. 3d 64, 383 N.E.2d 634, 22 Ill. Dec. 826 (5th Dist. 1978).

How to Ask a Leading Question

Leading questions should be easy. But have you made the following common error, requiring that you turn one question into two?

Q. It was 2:10 p.m., is that not correct?
A. Yes
Q. That was a true statement?
A. Yes.

It's that pesky negative that causes the problem. A better approach would be:

Q. It was 2:10 p.m., correct? --or,
Q. It was 2:10 p.m.?

The last example is often the best alternative. It's simple, direct, and unambiguous.

US Supreme Court Briefs Online

A nerdy confession: In law school, I tried to figure out what the legal research and writing instructor was talking about by reading real-life appellate briefs, which were kept in bound volumes in an unused portion of the library. I still believe that good writing often depends on starting with a suitable model.

Now you can find suitable models on the Internet. From Yale Law School comes a website devoted to compiling briefs and arguments from the US Supreme Court. Called the Curiae Project, it "provides Supreme Court records and briefs and other relevant materials free of charge on the Internet." (Link from Chris Geidner's post at De Novo.)

A New Online Column About Electronic Discovery

Dennis Kennedy and George Socha are doing a new column about electronic discovery. Kennedy's announcement is here; the first column is here. A sample of the column:

Spoliation and its attendant issues, preservation and cost-shifting, are the big issues of the day. Failing to properly preserve electronic information can carry substantial penalties, as the producing parties (or non-producing parties, as it were) have learned in cases ranging from Linnen v. A.H. Robins , 10 Mass L. Rptr. 189 (Mass. Sup. Ct. 1999) to Zubulake v. UBS Warburg LLC, et al. , Oct. 22, 2003, S.D.N.Y. (Zubulake IV).

Look at the Judge, Not Your Opposing Counsel

From The Uncivil Litigator comes "Rules to Live By," a set of rules to follow when appearing before a judge.

One rule, frequently violated where I practice, should be committed to memory: "I will not address opposing counsel at any time during an oral argument in court and will only address the judge, unless the circumstances require me to do otherwise."

It's easy to understand why judges become frustrated when a hearing at which he or she is supposed to be presiding disintegrates into petty bickering among opposing counsel. Answer the pointed jabs by your opposing counsel with your eyes on the judge. (On the other hand, I wonder why UCL says he always calls a judge "your honor," never "judge." Here in Southern Illinois, as well as across the river in Missouri, judges don't object to being called "judge" or even "sir"--just don't call them "dude.")

Don't E-Mail a Testifying Expert

That's my procedure anyway. What you tell your testifying expert is discoverable, so whatever you put in writing should be perfectly worded to put your point of view in the best light. But e-mail encourages quick, sloppy writing, and is not always conducive to organized, thoughtful exchanges. What's worse, when you use e-mail, you're encouraging your expert to reply by e-mail, and you can be sure he's not reviewing his response from a lawyer's point of view.

Perhaps I'm old school and paranoid, but I won't even send a letter to an expert. I just attach a business card to whatever it is (such as medical records) I'm sending. All other communication is by telephone.

A Trial Primer

On his firm's website, Connecticut lawyer Thomas J. Riley offers "Getting Evidence in at Trial or Keeping It Out" (.pdf format). I particularly liked Riley's tips for preparing witnesses for direct examination. He also discusses cross-examination, exhibits, and several other topics.

Even the headings contain some critical information, applicable to lawyers in every state, e.g., "Know What You Need to Prove and Make Sure You'll Remember to Get It All In."

The State of the Legal Profession

EthicalEsq posts today about Sandra Day O'Connor's recent speech about the state of the legal profession. Among other things, Justice O'Connor said, "Many attorneys believe that zealously representing their client means pushing all the rules of ethics and decency to the limit." (The original link was attributed by ethicalEsq to How Appealing.)