Part I: How Should You Prepare in Advance to Respond to Motions in Limine?
How Should You Respond to a Deluge of Motions in Limine?
The day of the deadline for pretrial motions can strike panic into the hearts of even the most stoic lawyers. Between motions in limine, Daubert, and dispositive motions, by midnight—particularly in a case involving numerous parties—an attorney may have received notice of dozens (or, in multidefendant cases, more than a hundred) motions, each requiring a rapid response. The majority of these will be motions in limine, which, if not necessarily by complexity, certainly by volume, pose a unique challenge. How should you handle this deluge of motions in limine?
In this series, Kastorf Law will identify strategies and considerations in crafting a timely and effective response. At the end, hopefully, you won’t be feeling like Matthew Peterson. If you have questions about your specific case, contact Kastorf Law to discuss your matter.
The Three Stages in Effectively Responding to Motions in Limine
This series divides dealing with motions in limine into three stages: (1) advance preparation; (2) after-filing triage; and (3) drafting the responses. Kastorf Law will address one stage each week. Today, Part I will cover advanced preparation.
Two Broad Classes of Motions in Limine Inform Your Response Strategy
Before turning to each stage, it is important to consider that there are two broad classes of motions in limine. The first are original motions that are carefully tailored to the facts of your case, and present creative arguments for excluding your key evidence. For example, a defendant in a products case might seek to exclude specific prior defects in the same product line as lacking in substantial similarity, and present a fact-specific motion backed by expert testimony, tailored to the your theory of the case. The second class of motions in limine are stock requests that opposing counsel uses in trial after trial and require minimal customization, such as a motion to exclude “golden rule” arguments. The two types of motions warrant different treatment.
Preparing In Advance
The best way to get responses done in time is to start before opposing counsel’s motions roll in.
Case-specific Motions in Limine
Preparing for original motions in limine means building research into the admissibility of evidence into your development of a theory of the case and construction of a trial notebook. By the time pretrial motions are due, you have likely spent considerable time thinking about and preparing notes detailing how you will present your theory at trial. The best way to get far ahead of the curve on preparation for motions in limine is to build into your trial notebook or case management software explanations and strategies for getting each fact properly admitted into evidence. That is, at the same time you think about which evidence or testimony you will use to prove each aspect of your legal theory at trial, also think about what live objections are available to opposing counsel and what specific evidentiary rule you will use to defend the evidence’s admissibility.
A particularly effective strategy is to begin your caselaw research at least as early as you start assembling your trial notebook. Many attorneys realize the value of beginning to sketch their opening, closing, and key witness examination outlines months or years before trial, but do not pair that work with research into admissibility of each point they hope to prove. Instead of being caught flat-footed, for each piece of evidence that makes it into your outlines, identify and print (or organize virtually) a case supporting admissibility. This approach serves three key purposes:
- It alerts you well in advance to potential problems at trial: You may be able to identify and remedy defects through additional discovery, adding expert witnesses, or simply seeking opposing counsel’s prior agreement as to the facts and genuineness of documents. Thinking in terms of admissibility flags the issue.
- It gives you a large head start on motions in limine: Of particular relevance to this paper, if you have already identified the case law or logical theory supporting admissibility, you are far ahead of the game when a motion in limine shows up. Good responses both disprove the central assertions in the motion in limine and build an affirmative case for admissibility. Get the affirmative case done in advance.
- It sets yourself up to easily defeat live objections: Finding a case for every piece of evidence that matters may sound like overkill; even an aggressive opposing counsel will not file a motion in limineon every bit of evidence. But you will become every judge’s best friend if you let the court know at the beginning of trial that every time you represent “what the law is” to the court, you will be prepared to hand up a specific case validating that claim. By mid-trial, the court may start instinctively looking to you, and not your empty-handed opposing counsel, for the correct rule to rely on. By building your customized caselaw library as you prepare your trial notebook, you can implement this approach seamlessly, without a monster of a research project in the days leading up to trail.
Stock Motions in Limine
The most efficient way to prepare in advance for stock motions in limine is to be aware of a dirty little secret: most attorneys have been relying on the same set of stock motions in limine for years or decades, with little updating. Reach out to other lawyers—at your firm, in your social network, or through legal association list serves—to see who can send you a copy of opposing counsel’s prior work. You can expect to see many of these same motions word-for-word.
There is also substantial overlap between the stock motions each firm uses, and the world of canned motions is not that large. It is probably time-inefficient to start researching and drafting responses to each such motion out there prior to facing them in a specific case. But it is an excellent idea to familiarize yourself with what exists and then begin a folder of relevant materials you find in other contexts. If you’re reading a case for summary judgment that also has an excellent explanation of when expressions of regret are admissible, for example, save it to a motions in limine folder. The same goes for secondary sources, such as good articles in legal association magazines addressing a particular issue.
Be Ready to Call Outside Help, if Needed
Even if you are a five-tool lawyer who excels at everything, it makes sense to identify in advance a small number of other lawyers who can step up if you need “additur counsel” to help with pretrial motions and perhaps later step into an embedded counsel role at trial. If you are at a larger firm, this step might mean identifying legal writing or trial specialists, and keeping them informed about your case well before you put demands on their time. At smaller firms and solo practices, it means identifying outside attorneys with experience in an embedded counsel role.
Attorneys at smaller firms are sometimes reluctant to engage outside help, both out of fear that it will cut into the profitability of the case and an ethic that the attorney is a jack-of-all-trades that can do anything well. But bringing in embedded counsel when you are facing a filing crunch often makes excellent sense. For one thing, it maximizes comparative advantage. You may well be able to draft a stellar response to a stock motion, but your time can be even better spent preparing for trial, running a focus group, or the like. For another, outsourcing saves on overhead. Maintaining sufficient staffing in house to cover a crush of pre-trial motions creates wasted capacity when a trial is not looming. And making regular use of co-counsel agreements is a form of risk sharing; better to have a 50% share of two cases than 100% of one.
Think in advance of who you might engage in a crunch, and do not be afraid to pick up the phone.