Part III: How to Draft Effective Responses to Motions in Limine
Part I of this series covered advance preparation for a deluge of motions in limine. Part II addressed how to engage in triage when you’ve received a stack of motions in limine. Finally, the main event. It is time to identify and draft responses to each motion in limine.
The approach for case-specific and other novel motions in limine will vary from that for stock motions. This guide will first provide a roadmap for identifying common flaws in case-specific motions in limine, then provide guidance on addressing stock motions.
How to Address Case-Specific Motions in Limine
Ultimately, each case-specific motion in limine requires a customized response that includes a persuasive presentation of the facts and an argument based on the best available case law. But often, the cracks in a motion in limine begin to show well before you are waist-deep in case law. Most such motions tend to suffer from a common core of defects that can be spotted quickly. This article will walk through some frequent weaknesses of novel motions in limine.
- Is it a motion in limine at all, or just dressed up as one? Sometimes what is framed as a motion in limine is really better defined as something else, such as a motion for summary judgment or a Daubert motion. There’s not necessarily anything wrong with framing a Daubert motion as a motion in limine; the purpose of both is a pretrial determination as to the admissibility of particular evidence. But sometimes it helps to call a spade a spade. One reason is that dispositive motions and Daubert motions do not always have the same filing deadline as a motion in limine. If you find a motion for summary judgment hiding in an omnibus motion in limine, your first order of business is to check any scheduling orders and see if opposing counsel is trying to weasel out of a timeliness objection. A second reason is that you may need to redefine the correct analytical lens for the Court. Perhaps opposing counsel is trying to get an expert kicked on relevance grounds or Rule 403, but a brief recitation of the Daubertfactors will show the position to be frivolous. Sometimes winning an argument is as simple as correctly labeling that argument.
- Is the motion sufficiently specific? The single most common defect in motions in limine is that they lack specificity. The purpose of motions in limine is to identify specific testimony and evidence that is off limits at trial. See Harvey v. State, 296 Ga. 823, 835, 770 S.E.2d 840, 850 (2015); Tollette v. State, 280 Ga. 100, 103 (2005). When opposing counsel simply tracks the language of a rule of evidence and asks the court to adopt it, you should oppose, pointing out that, while of course you have no intent of violating the rule, reaffirmation of the rules of evidence is not a valid purpose for a motion in limine. Invoking the need for specificity can become particularly important when opposing counsel files a motion in limineseeking to prohibit you from engaging in a particular approach to trial or a set of trial tactics. Point out to the court that motions in limine exclude evidence, not strategies. See, e.g. Adini v. Costco Wholesale Corp., 2017 U.S. Dist. LEXIS 55863 (Dist. Nev. 2017) (explaining why generic motions in limine to exclude “reptile theory” are meritless).
- Are there reasons the adjudication should be deferred for trial? Related to specificity, often the proper adjudication of a motion in limine depends on the exact testimony sought to be elicited. Wherever possible (but particularly where a motion lacks in specificity), encourage the court to defer adjudication of an adverse motion in limine for trial. This approach has several advantages: (1) if the court denies the motion in limine, the issue is preserved for appeal, but if the court defers adjudication, opposing counsel will still be required to make a contemporaneous objection. See Andres v. Wilbanks, 265 Ga. 555 (1995); (2) a deferral buys you time, both to think about how to frame your questions in a manner that defeats an objection, and to do additional research; and (3) if the trial still has a possibility of settlement, it is better to have the ruling open than for the court to have already decided it against you.
- Is the relief broader than what opposing counsel is entitled to? Often, where opposing counsel seems to have a strong argument that evidence is inadmissible for some purposes, they overplay their hand and ask that the evidence be excluded for all purposes. A typical example is a motion to exclude character evidence, which is inadmissible for propensity but admissible both for a whole host of other purposes and as impeachment. Make sure to frame the requested relief as overbroad, both to suggest that opposing counsel is overreaching, and to blunt the impact of a granted motion on your trial strategy.
- Does the motion rely on the current rules of evidence? Georgia lawyers are fond of referring to our evidence code as the “new” rules of evidence, when, in fact, it is now seven years old. One of the first things you should look at when reading a novel motion in limine is the dates of the Georgia cases cited. If they are from 2010 or earlier, investigate whether they are still good law. Many cases that Westlaw and Lexis will not identify as superseded nonetheless are inconsistent with Georgia’s adoption of the Federal Rules of Evidence, and you should not be afraid to point out where the logic of such cases runs contrary to the text of the modern evidence code or to case law interpreting the Federal Rules of Evidence.
- Does the evidentiary rule cited support the principle alleged? It is also important to ask yourself what rule of evidence opposing counsel is relying on. Often opposing counsel will start by complaining that evidence is unfair or unreliable, then, only after drafting, attempt to backfill the motion with citations to Georgia code. Often, the resulting motion ends up weakly invoking Rule 401 (the test for relevant evidence) or Rule 403 (exclusion of prejudicial evidence). Simply reviewing the text of the rule often identifies defects in the motion, Rule 401, for example, sets an incredibly low threshold on admissibility; evidence merely must make some relevant fact somewhat more likely to be admissible. Rule 403, meanwhile, sets a high threshold for exclusion. And, it is a prohibition on evidence, not courtroom conduct. Opposing counsel may try to invoke Rule 403 as their sole authority for prohibiting you from engaging in some trial tactic or strategy. Reminding the court that “evidence” is in the text of Rule 403 may be enough to highlight the motion’s fatal lack of legal support.
- Do the cases cited actually support the proposition? Finally, before beginning your own research into the relevant question, review the cases cited in the motion. Often, a relevant exception is built into the case itself, and opposing counsel has simply hoped you have not checked. Also do not underestimate the value of pointing out differences in procedural posture. The Court of Appeals’ failure to overturn a jury verdict against an abuse of discretion standard is not the same thing as the Court of Appeals concluding that such evidence ought have been excluded in the first instance. Do not let opposing counsel overstate the significance of the holding.
Again, identifying the above defects should never be your sole defense to a motion in limine. Ultimately, you should present a persuasive argument for the evidence’s admissibility, backed by record citations and case law. But following this checklist may put the motion in a precarious position before you have even begun your attack.
How to Address Generic Motions in Limine
This article has focused on how to approach responding to any motion in limine, but you should have specific strategies in place for responding to the most common motions in limine in Georgia. Kastorf Law will be rolling out guidance on responding to various motions in limine on a weekly basis, so check back often for updates. If your need is time sensitive, contact Kastorf Law.
Here are some of the motions Kastorf Law will cover:
- Golden rule
- Broad objections to hearsay
- Credibility of a witness
- Hypothetical questions / facts not in evidence
- “Send a message”
- Regret, mistake, error, or apology
- Reptile theory
- Wealth or finances of any party
In addition to relying on the above articles, a simple departure point for responding to stock motions in limine is to obtain prior responses to these stock motions, drafted by yourself or others, and use them as a departure point. It is important to remember, however, that there are limits to relying on the dated writing of others:
- The response might not have been that good. Even if you are drafting based on a model written by an excellent writer that you trust, recognize that the model may have been written under a deadline, drafted at the last second. It may represent that writer’s “B” writing, and not their “A+” work. Review any templates you intend to use during your triage stage, so you can identify how much additional refinement they may need.
- Case law changes quickly, and the draft response may be out-of-date. Even where a previous response seems well crafted, you should, at a minimum, Shepardize each case cited and review any recent treatment of that authority.
- Even where the general subject of a motion is generic, the specific relief requested may vary. And, opposing counsel may have included unique examples of inadmissible evidence specific to your case. Be careful to always review the specific relief requested and tailor the model to your needs.
Once you’ve identified any prior work product, it is time to draft. Don’t see the topic you want covered listed above? Do not have a well-written and recent template to work from? Your best next step is to call Kastorf Law for advice. We can efficiently plan and draft effective responses. And don’t forget to read Part I, here, and Part II, here. Talk to you soon!