Motions in Limine: The Complete Guide (2/3)

Part II: Effective Triage When You’ve Received a Stack of Motions in Limine

Part I of this series covered advance preparation for a deluge of motions in limine. But ultimately,  you can only do so much in advance. The real fun cannot start until the motions arrive. How should you engage in effective project management when you’ve received a stack of Motions In Limine?

The first step once you have them in hand is triage: making an initial assessment of both the significance and challenge posed by each motion in limine, and coming up with a plan to tackle them.

This article is Part II of a three-part series in handling motions in limine. If you haven’t done so yet, start by reading Part I, which covers advance preparation. Part III, covering the drafting phase itself, will be published next week. Call Kastorf Law with your specific questions about motions in limine.

The Two Worst Mistakes You Can Make in Responding to Motions in Limine

Let’s start the discussion of triage by noting the two worst ways to approach motions in limine: 

One temptation you might have, if the motions in limine roll in at the same time as much meatier motions for summary judgment and Daubert motions, is to simply mark off a big chunk of time towards the filing deadline to address motions in limine, set the motions in limine aside without a substantive review, and then turn your full attention to your higher priority motions. The risk here is two-fold: the first concern is that you will underestimate just how difficult the motions in limine are. There may be case-specific motions hidden under general headings that, if you lose, will expose you to a motion for directed verdict. Or there may be ones that, though less frightening, involve detail-oriented combing through the record for citations. Not identifying these challenges in advance could put you in a precarious position in the lead-up to the deadline. A second risk is that you will not notice until too late steps you could have taken to simplify your efforts. Perhaps you could have requested an affidavit from an expert or witness that would provide proper foundation for the evidence, or you could have solicited your colleagues for responses to similar motions. But those options are closed to you the night before the response is due.

The flip side is that, when faced with thirty-four motions, you may feel an overwhelming desire to just start drafting, so that you can make your task at least a bit less daunting. But that approach too can be error, because, as discussed below, taking a more thoughtful approach to the task ahead can both save you time and improve the quality of the finished product.

The Better Way to Approach the Problem

Now for the right approach. Assembly all of the motions and read them. Not necessarily a deep dive, but enough to figure out each of the following:

1. Is each request stock or specific? As discussed, some motions in limine are tailored to the facts of your case. Others are stock. Identifying each motion in limine as one or the other is one of the most important functions of triage. Stock motions take less time to answer; they are usually simpler, do not rely on extensive explanations of the record, and often can be consented to. And, if you plan in advance, you may be able to find a colleague or friend who has recently drafted a cut-and-paste quality response. The most important aspect of advance planning is simply understanding how many motions you are facing that fall into each category.

• Where are the hidden motions in limine? A closely related concern is rooting out one of the Georgia bar’s most favorite tactics: hiding Easter eggs in omnibus motions in limine. Suppose opposing counsel uploads three filings. The first two are motions in limine addressing specific and important evidentiary issues. The third is titled “Omnibus Motion In Limine” and contains twenty-eight subparts. You can be forgiven for assuming that those twenty-eight motions will all be generic, but you would be mistaken. Somewhere around motion in limine #26 your opposing counsel will have hidden an additional case-specific motion regarding a critical piece of evidence. You need to find all of these at the beginning, so that you can prioritize your work order, addressing the most important issues first. Otherwise, you can find yourself addressing the thing you care about most in the hours before your response deadline, when you are tired and your time is scarce.

• Where there are multiple opposing parties, where do issues overlap? If you are receiving sets of motions in limine from several parties, there is often substantial overlap between the issues raised in each. Charting these similarities in advance will save you drafting time, because you can produce a single response that can be cross-referenced or tweaked slightly for each opposing party. Be careful to read each request sufficiently closely, however. Often, two parties may use the same broad header for their motions, but one party’s motion will be entirely generic and the other party’s motion will include both a generic statement and a specific application warranting a tailored response. Identify these nuances and make sure you’ve noted them in a way that will trigger your recollection when you come back to that issue during drafting.

• Are there overarching themes raised by the motions in limine? Often, several motions in limine will really get at the same issue. Or they will suffer from the same general defect. Two of the most recurring problems in bad motions in limine are over breadth and vagueness. Motions in limine need to object to specific evidence, not general themes. If numerous requests suffer from the same vagueness issue (or otherwise share a common identity), consider beginning your response with an introductory section that hammers this issue. There are several upsides to this approach: (1) providing a theme for the response can help make your document more accessible to the court and the clerks, who are otherwise wading through dozens of seemingly-unrelated requests with far less context about the case than you possess; (2) you will save significant drafting time if you can repeatedly refer to your background principles, rather than setting out the law on specificity eight times; (3) the final response will be less wordy, which is almost universally a good thing.

• Which issues can you consent to? The triage process is your first chance to think long and hard about which of opposing counsel’s motions you can consent to. Are you really going to use that evidence at trial? Or, is there a bargain that can be struck where you consent to the thrust of the request but get opposing counsel to agree that the relief is overbroad as stated? Although its important not to give away the farm, carefully considering what evidence you actually intend to (and need to) present at trial is well worth the effort. Consenting to as many motions as feasible has two huge advantages: First, it massively reduces your workload, allowing you to spend more time on other issues. Second, it preserves your credibility with the court. Seeming reasonable makes the court take your other arguments more seriously (and often, the things you’re consenting to you have the weakest legal basis for opposing, anyhow).

• What information do you need to collect early in the process? For each motion, identify whether there are any steps to be taken up front to lesson work on the back end. Could obtaining an affidavit from an expert or a witness help lay the foundation for admissibility, simplifying your drafting? Is there a colleague you could e-mail who may have addressed a similar issue recently? Also, when you are only one part of a trial team and someone else is more familiar with discovery as to a specific issue, make sure to discuss with the correct attorneys what they actually plan to present at trial. Your co-counsel may flag for you that they only really care about a specific bit of testimony. Or, conversely, your co-counsel may identify a particular reason a bit of evidence is relevant. For example, your initial reaction to a request to exclude character evidence might be to consent because such evidence is clearly inadmissible to prove propensity. But your co-counsel may be planning on using that evidence to prove habit or absence of mistake. Use triage time to develop a list of questions to raise in a case meeting with your trial team. 

Planning your response to Motions In Limine

At the conclusion of your read-through, you’re ready to make a plan. This might include:

1. Making a list of any tasks you need to complete in advance of drafting; 
2. Making a list of questions for your trial team;
3. Calculating drafting time, taking into account the ratio of case-specific and generic motions in limine;
4. Listing the order in which you will address the motions during drafting.

With these tasks done, you can now more confidently turn your attention to dispositive motions and Daubert motions, if applicable, knowing that when you return to motions in limine, you have a thoughtful plan in place. One you’re ready to return, Part III will guide you through drafting a response.

Still have questions? Rather never think about this problem again? Reach out to Kurt Kastorf, who can efficiently plan and draft effective responses. And don’t forget to read Part I, here, and Part III, here.