motions in limine (part ii): beyond the · pdf filehistory of the motion in limine, ... n.e.2d...

16 n For The Defense n May 2007

n C. Barry Montgomery and Bradley C. Nahrstadt are partners in the fi rm of Williams Montgomery & John, Ltd. in Chicago. Mr. Montgomery has over 35 years of civil jury trial experience and over 150 jury trials to verdict in state and federal courts throughout the United States. Mr. Nahrstadt’s practice concentration is in litigation, including products liability, professional malpractice, commercial disputes and insurance bad faith.

Motions in limine (Part II ) Beyond

the Threshold

a motion in limine, and offered some practi-cal advice on the drafting of such motions. In this second installment, the authors will concentrate on the “nuts and bolts” of motions in limine. Relying on their exten-sive experience in trying lawsuits, they will offer some practical advice concern-ing the drafting of motions in limine, as well as highlighting the practical consid-erations that should be taken into account when trial counsel is faced with the task of researching, drafting and arguing motions in limine.

Testimony or Evidence Subject to a Motion in limine�The number of potential applications for a motion in limine is limited only by the creativity and effort of the attorney who is litigating the case. As such, it is impossi-ble to set forth herein a complete listing of all motions in limine which could be fi led by defense counsel. However, it is possi-ble to set forth categories of evidence that defense counsel should consider when ana-lyzing whether to fi le and argue a motion in limine.

By C. Barry Montgomery

and Bradley C. Nahrstadt

Block irrelevant, prejudicial or otherwise improper evidence before it’s too late.

In the fi rst part of this article, published in the April 2007 issue of For The Defense, the authors discussed the history of the motion in limine, commented on its uses, provided an overview of the legal authority for bringing

T r i a l Ta c T i c s

© 2007 DRI. All rights reserved.

For The Defense n May 2007 n 17

Irrelevant EvidenceMotions to exclude irrelevant evidence should always be used to ensure that the evidence presented at trial actually relates to the true issues in the case. Where coun-sel has reason to believe that opposing counsel will seek to admit evidence which seems to be irrelevant, counsel should file a motion in limine to exclude the evidence. Even if the motion is denied, counsel will have the benefit of learning why opposing counsel and the court believe the evidence is relevant and how the opposing side plans to use the evidence at trial. Scott D. Lane and Stephanie Hoit Lee, Illinois Motions in limine, §3:101(b), p. 3-3 (2004).

Understandably, whether a particular piece of evidence is relevant to the claims at issue depends in large part on the facts of the case and the evidence sought to be admitted. However, there are some types of evidence that are almost always irrelevant to a plaintiff ’s claims. They include:• Evidence of previous or subsequent acts

involving a party. For example, the fact that there have been previous fights in a tavern is irrelevant to proving that the

tavern owner was negligent in failing to control customers on the night the plain-tiff was injured. Tindall v. Enderle, 320 N.E.2d 764 (Ind. App. 1974); see also, Mead v. Scott, 256 Iowa 1285, 130 N.W.2d 641 (1964) (prior accidents at railroad crossing); Nicholes v. Lorenz, 49 Mich. App. 86, 211 N.W.2d 550 (1973) (prior behavior of dog).

• Evidence of custom, habit or routine. For example, a second automobile acci-dent involving the defendant does not tend to prove a pattern of reckless driv-ing. Bruckman v. Pena, 29 Colo. App. 357, 487 P.2d 566 (1971) (defendant’s involve-ment in second accident did not estab-lish a pattern); Swick v. Liautaud, 169 Ill. 2d 504, 662 N.E.2d 1238 (1996) (evi-dence of defendant’s conduct towards people other than the plaintiff excluded as irrelevant).

• Testimony concerning the conditions and circumstances surrounding the in-cident in question when liability has been admitted. Bullard v. Barnes, 112 Ill. App. 3d 384, 445 N.E.2d 485 (4th Dist. 1983).

• Character evidence in a civil suit where character is not an issue. Aley v. Great Atlantic & Pacific Tea Co., 211 F. Supp. 500 (W.D. Mo. 1962) (that defendant had been observed shoplifting on a previous occasion was irrelevant in action for false imprisonment); Fopay v. Noveroske, 31 Ill. App. 3d 182, 334 N.E.2d 79 (5th Dist. 1975) (treatment at psychiatric hospital irrelevant in defamation action); City of Houston v. Watson, 376 S.W.2d 23 (Tex. Ct. App. 1964) (juvenile delinquency ir-relevant in personal injury action).

• Evidence that there have been settlement discussions between the defendant and the plaintiff. St. Paul Fire & Marine Inc. Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744 (1962); Guardado v. Navarro, 47 Ill. App. 2d 92, 197 N.E.2d 469 (1st Dist. 1964).

• Evidence that the defendant has insurance coverage. Guardado v. Navarro, 47 Ill. App. 2d 92, 197 N.E.2d 469 (1st Dist. 1964).

• Evidence of citations issued as a result of the subject accident where the recipi-ent of the citation pleads not guilty. Pat-ton v. Franc, 172 A.2d 297 (Pa. 1961) (it was irrelevant to ask whether police offi-cer had filed criminal charges against the defendant truck driver); Thorns-bury v. Thornsbury, 131 S.E.2d 713 (W.

Va. 1963) (evidence of any criminal pro-ceeding is irrelevant in a civil proceed-ing arising out of the same incident).

• Evidence of prior or subsequent claims involving the defendant or that there is other litigation pending between the parties or that the defendant has settled other lawsuits. Sears Roebuck & Co. v. Jackson, 21 Ariz. App. 176, 517 P.2d 529 (1974); Option Resource Group v. Cham-bers Development Co., 967 F. Supp. 846 (W.D. Pa. 1996).Defense counsel must carefully consider

the evidence that she believes the oppos-ing side will seek to introduce at the trial of the case. In those instances where the evi-dence is not offered to prove a certain fact (in other words, there is no probative value to the evidence) or where it fails to relate to one of the issues before the court (in other words, it is immaterial to any issue of liabil-ity or damages), a motion in limine should be filed to preclude the introduction of such irrelevant evidence.

Prejudicial EvidenceEvidence which meets the test for relevance may nevertheless be excluded from trial if its potential prejudicial impact exceeds its probative value. Federal Rule of Evi-dence 403, which has been adopted by many states, states the following concern-ing prejudicial evidence:

Although relevant, evidence may be excluded if its probative value is sub-stantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury…

Federal Rule of Evidence 403. It is impor-tant to remember that prejudice, when used in this context, means more than the fact that the evidence in question is damaging to the party who is seeking to exclude it. As Professor McCormick so elegantly stated in his Handbook on the Law of Evidence:

It should be emphasized that prejudice, in this context, means more than sim-ply damage to the opponent’s cause. A party’s case is always damaged by evi-dence that the facts are contrary to his contentions; but that cannot be ground for exclusion. What is meant here is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one.

C. McCormick, Handbook on the Law of



Evidence, §185, at 439 n. 31 (2d ed. 1972). The emotional bases that McCormick was referring to could include bias, sympathy, hatred, contempt, retribution or horror.

So what evidence can be barred on the basis of being unduly prejudicial? Again, just as with relevance, it is impossible to provide a list of all of the types of prejudi-cial evidence which could be the subject of a

motion in limine. However, some prominent examples could include the following:• Evidence of prior occurrences where

there is no evidence that the prior occur-rences are substantially similar to the one at issue. Bachman v. GM Corpora-tion, 332 Ill. App. 3d 760, 776 N.E.2d 262 (4th Dist. 2002).

• Evidence that the defendant had con-sumed alcohol absent evidence to sup-port a jury determination of intoxication. Ballard v. Jones, 21 Ill. App. 3d 496, 316 N.E.2d 281 (1974).

• Gruesome photographs. People v. Gar-lick, 46 Ill. App. 3d 216, 360 N.E.2d 1121 (5th Dist. 1977) (color photographs depicting the decedent’s massive head wound should have been excluded); Peo-ple v. Szudy, 262 Ill. App. 3d 695, 635 N.E.2d 801 (1st Dist. 1994) (trial judge properly excluded photograph of body’s severe decomposition and skeletaliza-tion); People v. Gonzalez, 265 Ill. App. 3d 315, 637 N.E.2d 1135 (1st Dist. 1994) (photograph showing gunshot wound to the victim’s penis was more prejudicial than probative in light of other evidence describing the wound).

• Evidence which tends to suggest the wealth of the defendant (where there is no claim for punitive damages). Dupay

v. New York Central Railroad Co., 110 Ill. App. 2d 146, 249 N.E.2d 179 (1st Dist. 1969); Mapco, Inc. v. Holt, 476 S.W.2d 64 (Tex. Ct. App. 1971).

• Evidence that the defendant paid or offered to pay expenses occasioned by the injury or loss. Federal Rule of Evi-dence 408 & 409.

• Evidence of subsequent remedial mea-sures where such evidence is offered only to prove wrongdoing. Such subse-quent remedial measures could include, but not be limited to, repairs at the scene of an accident, design changes in a prod-uct or alterations in conduct or pol-icy. See, e.g., Grewe v. West Washington County Unit District, 303 Ill. App. 3d 299, 707 N.E.2d 739 (5th Dist. 1999); Alimenta (U.S.A.), Inc. v. Stauffer, 598 F. Supp. 934 (N. D. Ga. 1984) (granting motion in limine to exclude accountant’s post-transaction report analyzing and recommending changes to the defendant company’s controls and procedures).The elimination of prejudice is the tradi-

tional role of the motion in limine and was the main reason for its development. Prop-erly utilized, the motion in limine allows for an early ruling concerning admissibil-ity and, more importantly, prevents the of-fer of prejudicial evidence at trial. It protects defense counsel from the unenviable task of attempting to “unring the bell” and keep the jurors from focusing on an improper basis for imposing liability on the defendant.

Cumulative EvidenceA trial court has considerable power to exclude evidence that is merely cumulative, including limiting the number of witnesses each party may call. Boersma v. Amoco Oil Co., 276 Ill. App. 3d 638, 658 N.E.2d 1173 (1st Dist. 1995). This prohibition against allowing multiple duplicative witnesses from testifying has been applied to both fact witnesses and expert witnesses. See, e.g., Knight v. Haydary, 223 Ill. App. 3d 564, 585 N.E.2d 243 (2d Dist. 1992) (holding that trial court may bar an expert from tes-tifying where the expert’s testimony would be cumulative); Dillon v. Evanston Hospital, 199 Ill. 2d 483, 771 N.E.2d 357 (2002).

The prohibition against cumulative evi-dence applies to demonstrative or tangible evidence as well as testimonial evidence. If defense counsel believes, for example, that

plaintiff ’s counsel will attempt to intro-duce multiple graphic photographs of the plaintiff or plaintiff ’s decedent, a motion in limine should be filed seeking to bar the cumulative photographs (the motion should also set forth the prejudicial effect of having the jury view several photographs of gruesome injuries). Likewise, when a pro-posed exhibit merely summarizes clearly understandable testimony, a motion in limine can be filed in an effort to keep the jury from having to hear such cumulative evidence. People v. Williams, 161 Ill. 2d 1, 641 N.E.2d 296 (1994).

Improperly Obtained EvidenceIn an increasing number of cases, plain-tiffs attempt to utilize documents or testi-mony that they have obtained by improper means. This is especially true in employ-ment discrimination cases. Documents that were stolen by the plaintiff from his or her employer or testimony that was obtained through ex parte interviews of managerial employees may be excluded by the trial court pursuant to the applica-ble rules of ethics or professional conduct. The District of Columbia Bar has concluded that when plaintiff ’s counsel receives doc-uments from the plaintiff (or some other source), and he or she knows that the doc-uments were wrongfully removed from the employer’s premises, counsel is eth-ically obligated to return the documents to the employer without retaining a copy, unless doing so would violate the attor-ney-client privilege. See, District of Colum-bia Bar Comm. On Legal Ethics, Op. 242 (1993). When the improperly taken doc-uments are clearly privileged, the remedy may be dismissal of the action. See, Lipin v. Bender, 644 N.E.2d 1300 (N.Y. 1994). Some courts have held that “any evidence obtained through ex parte communica-tions with managerial-level employees of a defendant corporation will not be admis-sible at trial.” Massa v. Eaton Corporation, 109 F.R.D. 312, 315 (W.D. Mich. 1985).

Be creative. Some states, like Illinois, have rules governing the physical inspec-tion of real property. These rules usually require the party who wishes to inspect and photograph the property in question to submit a written request that sets forth a reasonable time for the inspection. See, e.g., Illinois Supreme Court Rule 214. If

A motion in limine� can

be filed asking the court to

bar the plaintiff from using

any improperly obtained

surveys, plats, photographs,

samples or tests.


a party, or the party’s expert, enters the defendant’s property and conducts a sur-vey or takes photographs or performs tests or takes samples, and notice was not given to the defendant pursuant to the rules, a motion in limine can be filed asking the court to bar the witness from testifying and to bar the plaintiff from using any improp-erly obtained surveys, plats, photographs, samples or tests at the time of trial.

Surprise EvidenceA motion in limine can be used to seek exclusion of evidence that does not con-form to the theories of the plaintiff ’s case as pleaded. A successful motion limits the plaintiff ’s evidence to those theories of recovery or damages that are reasonably apparent from the face of the complaint or were disclosed during the discovery phase of the case. For example, in Grassi v. Infor-mation Resources, Inc., 63 F.3d 596 (7th Cir. 1995), the plaintiff sought to offer evidence that the defendant had a motive to inflate its stock price because it was attempting to raise capital through an equity infu-sion. The Seventh Circuit Court of Appeals held that this evidence—directed at estab-lishing a key element of plaintiff ’s claim—was properly excluded at trial because the plaintiff had never previously identified its “equity infusion” theory. James S. Dittmar and David A. Forman, The Use of Motions in limine in Securities Litigation, ALI-ABA Course of Study Materials, Securities Liti-gation: Planning and Strategies for the New Millennium, p. 2 (May 2000).

Motions in limine may also be used to preclude the plaintiff from introducing evi-dence in support of previously undisclosed theories of damages. In Koch v. Koch Indus-tries, Inc., 6 F. Supp. 2d 1207 (D. Kan. 1998), aff ’d, 203 F.3d 1202 (10th Cir. 2000), for example, the plaintiff attempted to intro-duce a new theory of damages into the case by including new calculations in an “item-ization of damages” section of the proposed final pre-trial order. The court granted the defendant’s motion in limine and excluded evidence of the new damages calculation on the ground that the plaintiff had not given adequate notice of the new dam-ages theory and that the defendants would be unduly prejudiced by the introduction of such evidence where they had not con-ducted any discovery on that theory.

Competency of WitnessesDefense counsel should always give careful thought to filing a motion in limine chal-lenging the competency of both fact and opinion witnesses. Incompetency, with re-spect to a fact witness, will ordinarily be based on a lack of firsthand knowledge or the existence of a privilege. For example, a witness who arrives on the scene just after the accident occurred lacks sufficient first-hand knowledge to testify about the events that took place before his or her arrival. See, e.g., People v. Morgason, 311 Ill. App. 3d 1005, 726 N.E.2d 749 (5th Dist. 2000) (witness’ testimony regarding murder in-admissible because not based on personal knowledge); Northern Illinois Gas Company v. Vincent DiVito Construction, 214 Ill. App. 3d 203, 573 N.E.2d 243 (2d Dist. 1991) (ad-missible testimony limited to matters of which the witness has personal knowledge through his own senses). Likewise, a wit-ness who has no firsthand knowledge of the contents of certain documents should not be allowed to testify about them. See, e.g., Anderson v. Human Rights Commis-sion, 314 Ill. App. 3d 35, 731 N.E.2d 371 (1st Dist. 2000). In many jurisdictions, the rela-tionship between a husband and wife, phy-sician and patient and attorney and client gives rise to a privilege and invokes issues of confidentiality. In Haverstick v. Banet, 349 N.E.2d 282 (Ind. App. 1976), a motion in li-mine was used to block the family physician from testifying about the competency of the testator in a will contest. But see, Haverstick v. Banet, 267 Ind. 351, 370 N.E.2d 341 (Ind. 1977) (holding that heirs of testatrix, as well as personal representative, could waive tes-tatrix’s physician-patient privilege in will contest in which heirs claimed that testa-trix was not competent, overruling, to the extent to which it was inconsistent, Towles v. McCurdy, 163 Ind. 12, 71 N.E. 129). In addition, a witness may be incompetent to testify because he or she lacks the requisite mental capacity (such as a child or some-one with mental health issues) or because of the applicability of certain exclusionary statutes, such as a Dead Man statute. If a major witness can be excluded for lack of competence, defense counsel can create a very large gap in the opponent’s proof, of-ten to devastating effect.

Always remember that issues of compe-tency or qualification are not limited to fact

witnesses. Defense counsel must carefully review the qualifications of plaintiff ’s ex-pert witnesses and file motions in limine if the expert lacks the qualifications necessary to provide competent expert testimony.

In many states, such as Illinois, there is no general presumption that an expert witness is competent to give opinion testi-mony, and it is incumbent upon the party offering the witness to show the latter pos-sesses the necessary learning, knowledge, skill or practical experience to enable him or her to give opinion testimony. See, e.g., Broussard v. Hoffman Manufacturing Com-pany, 108 Ill. App. 3d 356, 438 N.E.2d 1217 (3d Dist. 1982). In those instances where the purported “expert” lacks the requisite qualifications to allow him or her to tes-tify about the subject matter of the lawsuit, a persuasive argument can be made that the witness should be barred from testify-ing based on his or her incompetence. See, e.g., City of Chicago v. George F. Harding Collection, 70 Ill. App. 2d 254, 217 N.E.2d 381 (1st Dist. 1965) (holding that it was an abuse of discretion to permit the city’s ex-pert witnesses to provide opinion testimony regarding the fair market value of the prop-erty which was taken in light of the fact that the expert witnesses had no familiarity with the type of property in question); Gib-son v. Healy Brothers & Co., 109 Ill. App. 2d 342, 248 N.E.2d 771 (1st Dist. 1969) (hold-ing that it was error to allow an industrial engineer who was not an expert regarding the combustibility of fabrics or other ma-terials to testify with regard to the com-bustability of any denim clothing worn by the minor plaintiff); Broussard v. Hoffman Manufacturing Company, supra (holding that the plaintiff ’s expert was not compe-tent to testify about the design of the defend-ant’s gasoline can where he admittedly had no experience with the design or manufac-ture of any type of portable, hand-carried gasoline can); Bloomgren v. Fire Insurance Exchange, 162 Ill. App. 3d 594, 517 N.E.2d 290 (3d Dist. 1987) (holding that a volunteer fireman who do not have any training in the investigation of fires or their causes and ori-gins was not qualified to testify as an expert witness regarding the cause of the fire which formed the basis of the suit); Collins v. Hys-ter Co., 174 Ill. App. 3d 972, 529 N.E.2d 303 (3d Dist. 1988) (holding that an expert was not qualified to testify about any specifically



alleged acts of negligence on the manufac-turer’s part, given the expert’s lack of knowl-edge of the state of the forklift industry at the time of the manufacturer of the fork-lift complained of); Baltus v. Weaver Div. of Kidde & Company, Inc., 199 Ill. App. 3d 821, 557 N.E.2d 580 (1st Dist. 1990) (hold-ing that plaintiff who had 20 years of expe-rience as an auto mechanic and who used transmission jacks on a regular basis was not qualified to provide an expert opinion that the jack stands at issue were unreason-ably dangerous since he did not possess the knowledge, skills and experience of a man-ufacturer or designer of the equipment in question); Cleveringa v. J. I. Case Co., 230 Ill. App. 3d 831, 595 N.E.2d 1193 (1st Dist. 1992) (holding that even practical knowledge and frequent use of a machine does not qualify the user as an expert on the issues of equip-ment design or manufacture).

Even if a total exclusion of an expert can-not be accomplished, a partial limitation of an expert’s testimony may be equally valuable.

DamagesThe type of damages sought by the plain-tiff may be the proper subject of a motion in limine, especially if the plaintiff is seek-ing to recover punitive damages from the defendant. Defense counsel should keep in mind that nearly all jurisdictions require entitlement to compensatory damages before punitive damages may be awarded, although some permit them if injunctive relief is granted. John D. Kitch, Proving and Disproving Punitive Damages, 21 Litigation 13, 14 (Winter 1995). In many jurisdic-tions, an award of even nominal damages is insufficient as a matter of law to sup-port punitive damages, while in others nominal damages will support an award of punitive damages. Id. What constitutes “nominal damages” is generally left to the trial court’s discretion. Id.

Defense counsel should also be aware of the fact that punitive damages have been prohibited in certain types of cases, including wrongful death cases, property damage claims, and claims against public entities. See, e.g., In re Paris Air Crash, 622 F.2d 1315 (9th Cir. 1980) (wrongful death); Eisert v. Greenberg Roofing & Sheet Metal Co., 314 N.W.2d 226 (Minn. 1982) (wrong-ful death and property damage); Cal. Civ. Code Sec. 818. In addition, in most jurisdic-

tions, if the complaints sounds in contract, punitive damages are unavailable as a rem-edy. Kitch, supra, p. 15

Defense counsel must also be aware of the fact that jurisdictions differ in their de-scriptions of the type of conduct that war-rants the imposition of punitive damages. Some courts require that the character of negligence necessary to sustain an award of punitive damages is the same as that required to sustain a conviction of man-slaughter. See, Chrysler Corporation v. Wol-mer, 499 So. 2d 823, 824 (S. La. 1986). Other states require only a showing of gross neg-ligence. See, Schwartz v. Sears, Roebuck & Co., 669 F.2d 1091 (5th 1982) (applying Texas law). Still other states allow the im-position of punitive damages where a de-fendant has exhibited “reckless or flagrant indifference,” or “willful,” “wanton,” or “malicious” disregard of the rights of oth-ers. See, Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757, 174 Cal. Rptr. 348 (1981); Dorsey v. Honda Motor Co., 655 F.2d 650 (5th Cir. 1981); Rinker v. Ford Motor Co., 567 S.W.2d 655 (Mo. App. 1978); Wangen v. Ford Motor Co., 97 Wis.2d 260, 294 N.W.2d 437 (1980). Yet other courts have allowed the imposition of punitive damages when the defendant has exhibited a “flagrant indif-ference to the public safety.” See, Moore v. Remington Arms Co., 100 Ill. App. 3d 1102, 427 N.E.2d 608 (1981); Leichtamer v. Amer-ican Motors Corp., 67 Ohio St. 2d 456, 424 N.E.2d 568 (1981). No matter what descrip-tion of outrageous conduct is employed by the court, one thing is clear: punitive dam-ages should never be awarded for mere in-advertence, mistake, or errors of judgment which constitute ordinary negligence. See, Loitz v. Remington Arms Co., 138 Ill. 2d 404, 563 N.E.2d 397 (1990); Deitemann v. Times, Inc., 449 F.2d 245 (9th Cir. 1971); Clements v. Withers, 437 S.W.2d 818 (Tex. 1969).

Finally, defense counsel must recognize that the burden of proof for punitive dam-ages claims differs between jurisdictions. For example, in Indiana, the standard for the recovery of punitive damages is proof of the misconduct by “clear and convincing evidence.” America’s Directories Inc., Inc. v. Stellhorn One Hour Photo, Inc., 833 N.E.2d 1059 (Ind. App. 2005); Indiana Code §34-51-3-2. In Maine, Idaho, Arizona, and Cal-ifornia, punitive damages may be awarded only when the plaintiff proves by clear and

convincing evidence that the defendant acted with malice or engaged in wanton, gross or outrageous conduct. See, e.g., Tut-tle v. Raymond, 494 A.2d 1353 (Me. 1985); Unfried v. Libert, 20 Idaho 708, 119 P.885 (1911); Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 723 P.2d 675 (1986); Cal. Civ. Code Sec. 3294(a). In Colorado, puni-tive damages may only be recovered based on “proof beyond a reasonable doubt.” Colo. Rev. Stats. Sec. 13-25-172(2).

All of these issues must be carefully ana-lyzed by defense counsel in any case where the plaintiff is seeking to impose puni-tive damages on the defendant. Motions in limine must be filed by defense counsel if the plaintiff is only seeking nominal dam-ages, if the type of claim involved is one in which a plaintiff cannot seek punitive damages, if the type of conduct involved does not warrant the imposition of puni-tive damages or if the plaintiff cannot meet the requisite burden of proof for the impo-sition of punitive damages.

Another important motion in limine that should be made is one to limit all references or evidence of punitive damages at trial un-til such time as the plaintiff makes a prima facie showing of entitlement to such relief. This motion in limine should especially in-clude a request that the plaintiff be restricted in her opening statement from making any reference to or providing a full factual dis-cussion of the issue of punitive damages. Another issue which should be dealt with in a motion in limine is a request that any evidence of other misconduct on the part of the defendant, including evidence of other lawsuits, be barred. In addition, if the judge usually issues a pre-trial instruction to the jury regarding punitive damages, defense counsel should consider filing a motion in limine if there is any reasonable basis to ask the judge to delay reference to the punitive damages claim because of its weakness and the likelihood that it might be subject to a motion for a directed verdict. Albert H. Par-nell, An Aggressive Defense Against Punitive Damages Claims (Part II), For The Defense, p. 25 (Nov. 1987).

One of the issues that repeatedly pres-ents itself in cases involving claims for pu-nitive damages is the plaintiff ’s attempt to introduce pattern and practice evidence. Pursuant to this theory, the plaintiff will at-tempt to introduce evidence of other claims


against the defendant that, although not necessarily similar to the claim which gives rise to the instant claim for punitive dam-ages, nevertheless bolsters the plaintiff ’s case that the defendant is a horrendous en-tity worthy of punishment. Jonathan Gross, Defending “Pattern & Practice” Evidence in Punitive Damages Cases, Defense Counsel Journal, p. 403 (July 1994).

Sometimes, in response to specific dis-covery requests, plaintiffs will not disclose the identity and nature of other claims they intend to present evidence of at trial. In these particular cases, defense counsel should present a motion in limine to exclude evi-dence of other claims as a sanction for dis-covery abuse. Gross, supra, p. 405. Defense counsel should also file motions in limine designed to force the court to establish what evidence of other activities can and cannot be used to prove willfulness at the time of trial. Once defense counsel has convinced the court to make a record articulating as specifically as possible the relevance of the evidence of the defendant’s conduct in unre-lated matters, defense counsel can, through other motions in limine or trial objections, prevent the plaintiff from using pattern and practice evidence for purposes other than that which the court has approved as rele-vant. Gross, supra, p. 406.

By filing carefully reasoned and judicially supported motions in limine, defense counsel can either narrow the issues at trial, or at the very least clarify them, so that defense counsel can gain a more thorough understanding of the plaintiff’s trial strategy. The pretrial mo-tions presented by the defense should be de-signed to make the plaintiff, in resisting them, reveal as much as possible about the theory of his or her claim and the tactics of his or her attack. An effective pre-trial motion strategy may also acquaint the defense team with nu-ances of the plaintiff’s case which may ulti-mately prove helpful during the trial.

Special Issues Regarding Motions in limineThere are a number of special issues regard-ing motions in limine that defense counsel must keep in mind when preparing for and trying a case.

Motions In limine Can Be Brought during the TrialIt is important to remember that although

a majority of all motions in limine are filed before the trial begins, in most jurisdic-tions, there is no authority which states that a motion in limine must be embod-ied in a pre-trial motion. As such, a motion in limine may be brought either before the trial starts or during the course of the trial. See, e.g., Neal v. Nimmagadda, 279 Ill. App. 3d 834, 665 N.E.2d 424 (1st Dist. 1996).

Always Reduce the Judge’s Rulings to WritingObtaining successful rulings on the motions in limine is only the first step. The judge’s rulings on the motions must be reduced to writing. As one commentator has noted, the order reflecting the court’s ruling on the motions in limine are critical. Thomas A. Demetrio, Demetrio on Trial Practice: Motions in limine: Why, When and How to Use Them, 13 CBA Record 56 (Octo-ber 1999). The order setting forth the rul-ings must be drafted clearly and precisely so that all the parties and their counsel understand the limitations of the order and the limitations placed on the evidence to be introduced at trial. Reidelberger v. Highland Body Shop, Inc., 83 Ill. 2d 545, 416 N.E.2d 268 (1981). Counsel must not leave any “wiggle room” about the rulings the court has made and what is or is not allowed to be presented in the presence of the jury. Counsel must also make sure that the judge signs the order setting forth the rulings on the motions in limine. Id.

Once armed with a written order, coun-sel must advise his or her witnesses of the court’s rulings on the motions in limine in order to make sure that there is no viola-tion of the judge’s rulings. The importance of this step was recently discussed by the Florida Court of Appeals in State of Flor-ida v. Santiago, Case No. 5D05-2162 (Flor-ida D.C. App., 5th Dist., May 5, 2006). In the Santiago case, the defense had filed several motions in limine and had obtained sev-eral pre-trial rulings from the court bar-ring the state from introducing certain evidence. During the course of his direct examination, the prosecution’s key witness volunteered information that the court had previously ruled inadmissible. Although the appellate court ultimately held that the prosecutor had not engaged in misconduct in his handling of the case, the court had the following to say about the obligation

of counsel to convey the judge’s rulings on motions in limine to the witnesses who will be called to testify:

…[T]he prosecutor did not bother to explain the pre-trial ruling to the wit-ness before calling him. Instead, the prosecutor explained that he trusted law enforcement witnesses to confine their answers to the questions asked so

that he could avoid the improper testi-mony by simply avoiding any question that would directly call for an answer including the barred evidence. Obvi-ously, his approach did not work. The prosecutor is cautioned that profession-alism demands that he review matters barred from evidence by court order with any affected witness before calling that witness to the stand.

Id. at p. 2.In addition, counsel can use the writ-

ten order to keep opposing counsel in line with the court’s rulings. It is one thing to ignore a verbal admonishment concern-ing the introduction of evidence; it is quite another to blatantly ignore a written order of the court. Indeed, courts have consis-tently held that a contempt citation can be issued where counsel violates a written in limine order. Barns v. City of Tacoma, 664 F.2d 1339 (9th Cir. 1982); Charbonneau v. Superior Court, 42 Cal. App. 3d 505, 116 Cal. Rptr. 153 (1974) (counsel given two-day jail sentence for contempt for violating in limine ruling and protective order).

Use Motions in limine OffensivelyAlthough the motion in limine was devel-oped for and has been used almost exclu-sively to keep evidence out of trials, counsel should keep in mind that the motion in limine can be used just as readily in the

A witness who has no

firsthand knowledge of

the contents of certain

documents should not be

allowed to testify about them.



admission of evidence as in its exclusion. The motion in limine is, after all, a request for a ruling on the admissibility of evidence made prior to the offer of that evidence at trial and may be used offensively or defen-sively. James A. Howell, The Use of Motions in limine in Civil Litigation, 1977 Ariz. St. L. J. 443, 468 (1977).

For example, in LeRoy v. Sabena Belgian World Airlines, 344 F.2d 266 (2d Cir. 1965), the plaintiff, suing for wrongful death in an airline crash, made a pre-trial request for a ruling that a transcript of radio trans-missions to the subject aircraft prior to the crash was admissible. After satisfy-ing a number of evidentiary prerequisites, the trial court granted the motion and the transcript was admitted into evidence. The Court of Appeals for the Second Circuit affirmed the ruling of the trial court.

Likewise, in People v. Drum, 321 Ill. App. 3d 1005, 748 N.E.2d 344 (4th Dist. 2001), the state sought to offensively use a motion in limine in a case involving charges of first degree murder. The state’s attorney filed a motion in limine asking the court to admit prior testimony of the defendant’s co-participants under the residual hearsay exception. Although the trial court denied the motion, the appellate court recognized that, “…although motions in limine are most frequently used to bar or limit evi-dence, they may also be used by the pro-ponent of evidence, such as the State in this case, to obtain a pretrial ruling that the evidence at issue will be admitted at the appropriate point in trial.” Drum, 748 N.E.2d at 346.

As outlined above, an offensive motion in limine can be used to obtain judicial approval of important documentary or testimonial evidence. It can also be used to ask the court for a ruling on the appro-priate burden of proof, whether a party can invoke the attorney-client privilege, whether defenses such as judicial estoppel, discharge in bankruptcy, statute of limita-tions or collateral estoppel apply, to sup-port the admissibility of a police report diagram, to determine the proper mea-sure of damages, to support the giving of specific jury instructions, or in support of using blown-up jury instructions dur-ing closing argument. Perry Cockerell, The Motion in limine in Bankruptcy Litigation, 24-2 ABIJ 28, 62–63 (March 2005); Exam-

ples of Motions in limine, 13 CBA Record 57 (October 1999).

There are several advantages to seeking and obtaining an offensive ruling from the court regarding the admissibility of certain evidence. If counsel can be assured of the admissibility of a major item of evidence, time and expense will be saved by not hav-ing to amass ancillary evidence to prove the point. Howell, supra, p. 469. Advanced admission of evidence also has many of the same advantages previously identified with the exclusion of evidence. Trial disrup-tions are avoided, resulting in the saving of time, a continuous flow of evidence, and a clearer understanding of the evidence. On the whole, in limine rulings are more care-fully considered and, hence, less likely to produce error. Finally, the proponent of the evidence can take the “sting” out of attempted exclusion by moving first for admission of the very same evidence. Id.

There are, however, some potential dis-advantages to moving for admission of evidence through the motion in limine. A party reveals a good deal of trial strategy by moving for admission of evidence prior to the commencement of trial. This gives the opposing side time to develop a theory for the exclusion of the evidence, especially if the court allows briefing on the motions in limine. Moreover, if the evidence is ulti-mately admitted, opposing counsel has had additional time to contemplate a trial response. In addition, there is some risk that an unfavorable ruling on the motion may end all possibility of having the evi-dence admitted. The trial judge may be disinclined, later in the trial, to admit the evidence if he or she had previously con-sidered and rejected a carefully written motion in limine concerning the same evi-dence. Id.

Always Consult Local Rules Regarding Motions in limineDefense counsel should always be aware of local court rules that may impose stricter notice and filing requirements than those set forth in the state or federal rules gov-erning motions in limine. For example, in the 14th Judicial Circuit in Illinois, the par-ties are required to file all motions in limine with the court four days prior to the final pre-trial conference. 14th Judicial Circuit Court Local Rule 6.9. The pre-trial form

used in the Eighteenth Judicial Circuit in Illinois sets forth a date for the final pre-trial conference and requires all parties to reduce their motions in limine to writ-ing and submit the motions to the court and opposing counsel by the date set for the final pre-trial conference. 18th Judi-cial Circuit Litigation Conference Order. In order to avoid any unpleasant surprises, always check the local rules of the juris-diction where the case will be tried and be sure to carefully follow all procedural requirements.

Objections Following a Denial of a Motion in limineOne question that often arises during the course of trial is whether defense coun-sel must object at trial where a previous motion in limine has been denied by the trial court. The answer to that question depends in large part on where the case is being tried.

In 2000, Federal Rule of Evidence 103 was amended in order to clarify whether contemporaneous objections are necessary to preserve an objection on appeal once the court has made a definitive ruling on a motion in limine. Federal Rule of Evidence 103 now reads as follows:

Rule 103. Rulings on Evidence(a) Effect of Erroneous Ruling.—Error

may not be predicated upon a rul-ing which admits or excludes evi-dence unless a substantial right of the party is affected, and(1) Objection.—In case the rul-

ing is one admitting evidence, a timely objection or motion to strike appears of record, stat-ing the specific ground of objec-tion, if the specific ground was not apparent from the context; or

(2) Offer of Proof.—In case the rul-ing is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which ques-tions were asked.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew

Motions in limine�, continued on page 77


an objection or offer of proof to pre-serve a claim of error for appeal.

F.R.E. 103(a).In many states, like Illinois, when a

motion to exclude evidence is denied prior to trial, the opponent of the evidence must object at the time the evidence is offered at trial in order to preserve the error for appeal. If a motion in limine to admit evi-dence is denied, the proponent of the evi-dence must make a sufficient offer of proof in order to preserve the error for appel-late review. Beasley v. Huffman Manufac-turing Co., 97 Ill. App. 3d 1, 422 N.E.2d 241 (3d Dist. 1981); Schuler v. Mid-Cen-

tral Cardiology, 313 Ill. App. 3d 326, 729 N.E.2d 536 (4th Dist. 2000); Dillon v. Evan-ston Hospital, 199 Ill. 2d 483, 771 N.E.2d 357 (2002); see also, Casteel v. State Farm Mut. Auto. Ins. Co., 989 S.W.2d 547 (Ark. Ct. App. 1999); Lussier v. Mau-Van Dev., Inc., 667 P.2d 804 (Haw. 1983); Jones v. Panola County, 725 So. 2d 774 (Miss. 1998).

In other states, the courts hold that once a definitive ruling is made, no other con-temporaneous objections are necessary. See, e.g., United States v. Palmer, 3 F.3d 300 (9th Cir. 1993); United States v. Mejia-Alar-con, 995 F.2d 982 (10th Cir. 1993). Before trial, defense counsel must review the rules of the jurisdiction where the case is going to

be tried and ascertain whether a contempo-raneous objection or offer of proof must be made in those cases where the court denies a pre-trial motion in limine.

The motion in limine must be used wisely and expeditiously. In addition to giving careful thought to the evidence sought to be excluded by motions in limine, defense counsel must also pay special attention to their drafting and presentation. By fol-lowing the steps outlined in this two-part series, defense counsel should hopefully be able to keep irrelevant, immaterial, cumulative and prejudicial evidence out of the hands of the jury and obtain a well-deserved defense verdict.

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