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Motions in Limine - Abraham Lincoln Inns of Court

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Motions in limine are used to obtain advance rulings from the court on the admissibility of evidence. Hearings on the motions are to be held outside of the presence of the jury. Such motions may be to exclude or include evidence.

Derived from Latin, in limine literally means “at the threshold” and not “to limit” as commonly assumed. Presumably “at the threshold” refers to the idea that such motions are typically presented pre‐trial, although there is no prohibition against making such motions after a trial has commenced.


There is no explicit mention of motions in Limine in the Federal Rules of Evidence or the new Illinois Rules of Evidence. Case law has opined that authority for motions in limine is gained from the court’s general authority to control the nature of information presented to a jury.


Grounds for Motion in Limine

Multiple evidentiary issues may be addressed by motions in limine. Grounds for granting a motion in limine include:


  1. Evidence is Irrelevant: Irrelevant evidence may be precluded from presentation to the jury (IRE 402). Counsel will often attempt to introduce irrelevant evidence to create sympathy or prejudice among the jury. As an example, is it relevant if a defendant is wealthier than the plaintiff? Is it relevant if a physician failed his first attempt to become Board Certified twenty years ago?
  2. Evidence is Prejudicial: Information that is relevant, but unduly prejudicial, may be excluded (IRE 403). As an example, relevant photographs of an accident may be so gory they become prejudicial and should be excluded. Some evidence, such as prior criminal convictions over ten years old, may be excluded as prejudicial by applicable rules of evidence (IRE 609(b)). Evidence of religious beliefs may be inadmissible (IRE 610).
  3. Evidence is Cumulative: Cumulative or repetitive evidence may be excluded (IRE 403). The court has wide latitude in making the determination as to what is, or is not, cumulative testimony. Among other reasons, cumulative evidence may be excluded to avoid the needless waste of time (IRE 611(a)).
  4. Witness is not Competent: The competency of expert and lay witnesses may be challenged. Examples include physicians not familiar with the applicable standard of care and engineers not qualified in a particular field. Lay witnesses that did not actually see a particular event may not be competent to testify (IRE 602) Additionally, testimony of mentally incompetent witnesses and testimony subject to exclusionary statutes such as the Dead Man’s Statute may be challenged.
  5. Evidence was Improperly Obtained: Criminal trials are not the only situation where improperly obtained evidence may be excluded. Other examples include privileged information improperly obtained by an employee and evidence obtained through inspections conducted without notification to the opposing counsel.
  6. There was a Late/Incomplete Disclosure: A witness may be barred from testifying if the witness was not disclosed in a timely fashion, or if the witness plans on testifying about matters not identified in responses to discovery requests.
Practice Tips

Caution is urged when planning your motion in limine. Considerations include:


  1. Use Motions Offensively: Motions in limine may be used offensively to disrupt your opponent’s case. As an example, if the testimony of a key expert witness can be excluded the case may be effectively won pre‐trial. Similarly, if you can obtain an advance ruling to admit evidence that may be arguably prejudicial, you may increase your chance of a favorable pre‐trial settlement.
  2. Defend Against Surprise Claims: Defensively, you should attempt to prevent surprise theories of liability or methods of calculating damages. As an example, a motion to exclude evidence that may be offered to support a claim not contemplated by the pleadings may make your opponent reveal his trial strategy and protect you from the introduction of evidence not previously the subject of investigation or discovery.
  3. Defend Against Surprise Attacks: Defensively, you should attempt to protect your client against evidence that is irrelevant and may be prejudicial. Examples include questions about the wealth of the defendant when punitive damages are not an issue, past criminal acts, alcohol consumption, and prior unrelated claims.
  4. Review Your Strategy: A motion in limine risks alerting your opposition to weaknesses in either their case or yours. If you are concerned about your ability to have certain evidence admitted, should you file a motion in limine, giving your opponent adequate time to prepare, or do you risk arguing a potentially dispositive issue after the start of the trial? Similarly, do you challenge an expert in advance or wait and attempt to discredit the witness at trial?
  5. Use Written Motions and Orders: Motions in limine should be presented in writing and the judge’s opinion should be in writing. A written order may be invaluable during trial or appeal.
  6. Prepare Your Witness: The attorney should discuss a ruling on a motion in limine in advance with a witness. Efforts should be made to avoid the inadvertent violation of an order to avoid a mistrial.
  7. Consult Local Rules: As always, local rules should be consulted to determine proper motion practice. As an example of the difference between local rules, the 10th Judicial Circuit has no specific rules pertaining to motions in limine, but the 18th Judicial Circuit requires all motions in limine to be in writing.
  8. Preserve/Renew Objections: If you opposed the introduction of evidence, either as part of your motion or in response to your opponent’s motion in limine, you must renew your objection at trial prior to admission of the evidence (IRE 103 (a) (1)). Failure to object may result in a waiver of your right to appeal. Also, remember orders pursuant to a motion in limine are interlocutory and subject to change. Testimony presented at trial, combined with your renewed motion, may convince the judge to change the prior ruling.
  9. Make the Offer of Proof: If evidence you wanted to introduce is excluded pursuant to a motion in
    limine
    , you must make a proper offer of proof or you may waive your right to appeal the order (IRE 103 (a) (2)).
  10. Reconsider Redundant Motions: You may, or may not, decide to make a motion in limine to address issues already covered by the Illinois Rules of Evidence. As examples, the Illinois Rules of Evidence generally prohibit references to settlement negotiations (IRE 408), payment of medical expenses (IRE 409), and insurance (IRE 411). However, evidence of prior conduct (IRE 405 (b)) and habit (IRE 406) may be admissible. You must weigh the advantages and disadvantages of making redundant motions in light of the specific facts of your case.
Conclusion

Motions in Limine may have a huge impact on the outcome of a trial. You should be aware of issues potentially subject to a motion in limine from the moment you agree to represent a client and prepare your case accordingly.


IRE refers to the Illinois Rules of Evidence