MOTIONS IN LIMINE AND PICKING YOUR JURY

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1 MOTIONS IN LIMINE AND PICKING YOUR JURY SHARON SOORHOLTZ GREER CARTWRIGHT, DRUKER & RYDEN MARSHALLTOWN, IOWA MOTIONS IN LIMINE A. Motions in Limine are governed by Iowa Rule of Evidence through so that relevancy of evidence can be determined before reaching a jury. These motions are a useful tool to prevent immaterial information from encumbering the record. Wagner v. Larson, 136 N.W.2d 312, 326 (Iowa 1965). B. Use the motion to create a red flag about evidence or behavior: 1) Alert the judge to objectional potential testimony or exhibits. a. Guidance counselor is going to talk about what the potential employer told her about the decedent. b. The attorney for the Estate wants to admit into evidence the letter detailing how the organs were harvested and donated by decedent s family. 2) Alert the judge that there may be issues with the foundation or expert opinions that may be presented. 3) Alert a judge about potential problems with counsel or techniques, such as the reptile presentation, that counsel may bring to the trial. C. A Motion in Limine is not a ruling on evidence and should not, except on a clear showing be used to reject evidence. Twyford v. Weber, 220 N.W.2d 919, 923 (Iowa 1974). These motions lend a procedural step to the offer and presentation of the case and evidence. Counsel is advised as to potential problems, has the chance to make a record or offer of proof and the Court is allowed time to make a decision and ruling to avoid a mistrial.

2 D. If the motion is denied, the denial, in itself, is not reversible error. Yeager v. Durflinger, 280 N.W.2d 1, 5 (Iowa 1979). Objections must be made at trial as to the exhibit or the testimony and failure to do so waives the objection to such evidence. Standing objections are discouraged and will not protect your record. E. However, if the ruling on the Motion in Limine reaches the ultimate issue of admissibility, it can be deemed a final ruling and then, there may not have to be objections made at trial. A motion in limine decision on the evidence made by the Court has the effect of a ruling. Making the record on such determination, it may be prudent to ask the Court, on the record, if the Court considers the ruling the final order of the court on the admissibility of the particular evidence. See State v. Daly, 623 N.W.2d 799, 800 (Iowa 2001). F. The standard of review related to Motions in Limine is one of abuse of discretion. Twyford v. Weber, 220 N.W.2d 919, 922 (Iowa 1974). G. Violations of an Order related to a Motion in Limine may result in mistrial. Baysinger v. Haney, 155 N.W.2d 496, (Iowa 1968). Witness discussing the availability of liability insurance after a ruling to not do so, may open the door to a mistrial ruling. H. General topics for Defense Counsel Motions: See some sample topics: 1. No reference should be made to any liability insurance coverage of Defendant or the amounts involved. 2. There should be no evidence as to any traffic charge or criminal record of Defendant as it does not pertain to any issue at this trial. There should be no testimony involving hearsay from any persons at the scene. The police report is inadmissible and should not be allowed in evidence. Iowa Code and Medical payments made by the insurance system as a collateral source should be allowed to be disclosed in evidence, if and only if, the record establishes that the medical bills are reasonable and customary charges in the area. The only evidence of that standard should be the sum the health insurer has accepted and reimbursed. Finally, there must be some record by the provider that the charges are for treatment related to and caused by the accident. Here, there is no evidence of the reasonableness of the charges and no evidence that such charges are related to this accident. 4. Certain experts have been designated as expert witnesses by the Plaintiffs. Under the

3 Rules of Civil Procedure, Rule has not been met with regard to disclosure of expert opinions and with regard to disclosure of relevant and necessary medical documentation. On December 3, 2012, Plaintiffs answered Interrogatories served in March of Interrogatory no. 5 required that the treating doctors provide their opinions and the summary of the grounds for each opinion. Interrogatory no. 6 requested expert opinions with a requirement that the expert s opinions be provided and signed by the expert. See the answers provided by Plaintiffs to those Interrogatories that are attached. Plaintiffs have never supplemented those answers. Where opinion testimony is developed in anticipation of litigation or for trial, the designation and disclosure requirements apply. See Duncan, 560 N.W.2d at 323; see also Cox v. Jones, 470 N.W.2d 23, 25 (Iowa 1991) (treating physician who will give testimony on standards of care and causation is an expert subject to disclosure under rule [1.508] ). We find no abuse of discretion in the limits placed on Campbell's testimony here. Toe v. Cooper Tire & Rubber Co., , 2013 WL (Iowa Ct. App. Apr. 24, 2013); see also, Duncan v. City of Cedar Rapids, 560 N.W.2d 320, (Iowa 1997). There have been no reports or records provided that address issues within the expert area such as: 1) permanency of any alleged condition, 2) the need for future medical treatment, 3) the cost of such medical care, and 4) any causation between the general allegations of a problem and the actual motor vehicle accident. The medical records provided are limited and do not address these issues. The only exception is the evidence as it related to testimony provided by Dr. Honkamp and that evidence should be limited only to the deposition testimony and records provided at the time that deposition was conducted. Therefore, Plaintiffs should be limited to what was disclosed in their answers to interrogatories. 5. There are no records that have been provided to counsel relating to any treatment by DeAnn M. Fitzgerald, O.D. Bauder should be prohibited from any late disclosure of any opinions or records from this provider. Additionally, there are no medical records that have been provided from David Friedgood, D.O., except for a letter written by him. Bauder should be precluded from using this medical

4 provider or his opinions at trial since counsel has not had the benefit of receiving a single treatment record. 6. Bauder finally provided two tax returns from 2011 (the year of the accident) and 2012 on May 1, 2013, less than 30 days before trial. Counsel has not received any tax return that predates the accident and has not received any documentation of any lost earnings or lost earning capacity as to Bauder. She should be prohibited from testifying to any loss of income at this late date. See Answer to Interrogatory no. 13, where no evidence or information has been disclosed. I. Motion topics when dealing with a reptile : 1. Prejudicial Comments: No reference should be made to the occupations, success or net worth of the parents of Defendant as that has no relevance to the case and would inject prejudicial evidence into the case. Additionally, there should be no discussion about whether Defendant s parents have paid for his college education. There should be no testimony that his parents hired a high powered attorney to defend him in the criminal action. Plaintff s counsel should also be instructed not to suggest or make statements about whether Defendant was afforded a special deal due to his parents status. 2. Purchases for Client: Attorney for Plaintiff announced in the deposition of his client that he was going to take her out and buy her a stationary bike. He should be prohibited from announcing to the jury, as he has done in other cases, that he has bought her any stationary bike as it would be inappropriate and prejudicial. 3. Argument in Voir Dire and Opening: Counsel should be prohibited from discussing his arguments about the money he will be requesting in this case in voir dire and in her opening statement. Those opinions are argument and it is inappropriate to condition jurors to a number that is clearly, not evidence but argument. Counsel uses golden rule techniques in jury selection to influence the jurors inappropriately.

5 JURY SELECTION A. How to Prepare for Selecting the Best Jury for Your Client 1. Collect as much information before jury selection as possible. Some counties will provide a list of jurors before trial (some charge for this), it is best to obtain it and review it. These lists often include important information such as age, education level, occupation, neighborhood, spouse occupation, prior jury experience, prior lawsuit experience, and felony convictions. Potential juror notes to the judge are the most interesting and revealing. It the questionnaires are available, we input those into a spreadsheet to use during selection. It summarizes important information and is an easy format to circulate to other attorneys in the area that might know your potential panel. (See the spreadsheet attached at the end of this outline). Circulate the list in your office to see if anyone else knows the prospective jurors and can provide you with other useful information about them. If out of county, consider having others give input on the list. If you are sending to someone who is not an attorney, be sure and caution them that they cannot approach these potential jurors or you will taint your panel and potentially lose a good juror. If the size of the case warrants the time spent, consider the assessor's web page, and if case is ginourmous, consider a focus group or mock jury. 2. Create a jury profile in advance. What kinds of jurors would be most beneficial to your case? Factors to consider in creating the jury profile include age, marital status, employment history, education, occupation, and experiences relevant to the case. Engineers and accountants may require more proof than social workers. Nurses may be less sympathetic to pain than convenience store clerks. What about teachers? Lawyers? Small business owners may understand a premises liability issue.e B. How to Make a Credible and Meaningful Connection with Prospective Jurors 1. First impressions are vital. The jury needs to perceive the attorney as a person with integrity. Attorneys should be and appear sincere and honest from the first contact with the jurors, since it will foster credibility and bolster persuasiveness throughout the trial. Dress like a lawyer--jurors are given few safe topics to talk about, and your dress is one of them.

6 2. Develop rapport. Help the jurors reduce their anxiety and tension of being in a courtroom. Make eye contact, listen attentively to what they are telling you, and show genuine interest in what they are saying. Give facts instead of sales talks. Never ignore a juror. 3. Be prepared. The attorney s job is to be a well-planned professional. Have a list of questions ready to ask them. This not only helps with presentation and appearance, it helps the attorney be more focused and able to listen attentively to the responses instead of thinking ahead to the next question. Jurors also value their time. Being prepared helps the process move quicker, and shows that the attorney respects the time the jurors are committing. C. How to Uncover Attitudes, Biases and Values that May Impact Your Case 1. In uncovering attitudes and biases in prospective jurors, there is no substitute for out-of-court preparation and adequate voir dire. A pretrial investigation of the jury list may be necessary. Often though, it is impractical to do more than circulate the list amongst colleagues and examine the preliminary answers they have given, which makes an extensive and thorough voir dire that much more important. 2. It is generally better to get a prospective juror to volunteer their attitudes on an issue than to confront them about a perceived attitude. Jurors often do not realize that their values or beliefs would be considered prejudicial by others. Also, if jurors feel attacked or judged, they may respond in a negative way, and this will not be perceived well by them or by the other potential jurors. If a prospective juror is really "out there," consider asking if other prospective jurors see things differently. D. Voir Dire and the Art of Asking the Right Questions 1. The most accurate way to assess prospective jurors is by allowing them to talk. Many attorneys fear the open-ended question because their use can permit a situation to get out of control quickly. However, when the questions are wellprepared, they allow the jurors to reveal important characteristics. For instance, asking jurors about their work allows an attorney to assess their self-esteem and decision-making skills. It may also reveal whether that individual has a positive or negative outlook on things.

7 2. Questions of the jurors should be designed so that they fit into one of three categories: 1) entire panel questions, which can be answered by raising a hand; 2) routine questions (name, age, occupation); and 3) individual questions designed to elicit follow-up information, especially about things pivotal to the type of case you are trying (e.g., experience and attitudes about dogs in a dogbite case, or about drinking in an OWI case). 3. Remember that most jurors like to be asked questions. Since they have committed their time to be there, most of them want to feel that their opinions and thoughts are heard and respected. The last person questioned wants to feel that the attorney wants to hear from them as much as the first person questioned. Again, never ignore a potential juror completely or you lose the connection and he or she may feel you do not respect them. 4. You can object to opposing counsel making a juror a trial witness. Object if counsel says how would you feel if this happened to you.and then proceeds to describe the case. Objections like these have to be done by asking to approach and talking with the Judge sidebar. E. Questions to Ask the Jury 1. Many questions can be asked of the whole panel, with follow-up questions directed to individual jurors who answer in a certain way. For instance, a panel question might be Would anyone on the panel who does not know how to drive a car, please raise your hand. If someone raises their hand, follow-up with open-ended questions directed to that person. For questions about prior injuries or lawsuit experience, consider asking them to answer not only for themselves but also for family members and close friends. a. Knowledge of incident? b. Know counsel, witnesses, other jurors? c. Sued or been sued? d. Expertise (e.g., medical, legal, dog training, concrete, roofing) 2. Individual questions are appropriate for several reasons: 1) to obtain specific information from that juror that will be different from the responses other jurors have given; 2) to obtain promises of future behavior from that juror; 3) to encourage a juror to share a specific attitude or belief about an important issue in the case.

8 3. Use your theme with the questions you design. Use simple language. Now is not the time to dazzle the jurors with your extensive knowledge of legalese. Do not be afraid to talk about the problems in the case to desensitize the panel. Educate, but do not try to remediate or argue with a juror about a position. For example, if a juror says corporations are greedy, you can say I am not going to tell you that all corporations are run ethically or responsibly, as we know not all are, but I since I am representing a company, I have to ask how you feel. This gives you credibility, but allows you to distance your client by focusing that not ALL folks do it all the same way. 4. Use jury selection to de-select the jurors you do not want and use your skills to make your opponent take off those jurors! F. How to Get Jurors Talking 1. Make the jurors comfortable and at ease by projecting that you are comfortable and at ease. This comes with experience and preparation, but it also comes with showing your human tendencies of warmth and concern for others. Allowing the jurors to view you as a person does not mean you or they should forget the serious duties ahead, only that there need not be conflict and tension in fulfilling those duties. Use humor if you have it. 2. Use the questions you ask to put the prospective jurors at ease as well. Beyond the standard and necessary demographical questions, people generally like to talk about themselves and their lives, and jurors are no different. Open-ended questions about a juror s occupation, family, or hobbies and other familiar subject matter are likely to make the jurors comfortable and willing to talk. Favorite tv shows and favorite types of reading material can be illuminating. G. The Importance of Active Listening During Voir Dire 1. Beyond what the prospective jurors are saying with their spoken answers or a raised hand, there are other important nonverbal communications that an attorney should be able to recognize, such as carried items, posture, and appearance. Although not foolproof, being aware of and able to assess these things can offer an attorney an extra glimpse of the prospective jurors personalities.

9 2. The items a juror brings with them can tell something about them. For instance, an individual who brings with them the latest presidential biography may be interested in current events and politics. A woman who carries a bright red purse may be more outgoing and vocal about her opinions than one who carries a simple black purse. 3. The posture of a juror can also be important. An individual who is seated on the edge of their chair may not expect to be there long, either because they do not expect to be chosen or because they want to be excused. A juror who is seated toward the front of the chair, but is leaning backwards, might be indicating their boredom or indifference, but also a higher degree of relaxation. 4. Assessing a juror s appearance can encompass hair and makeup style, body type, and clothing. For example, a juror wearing a dark suit and tie with a clean-cut hair style may occupy a position of authority and be a leader. 5. Hostile answers. Thank the person for the candor and consider asking if any others have a different viewpoint and why. H. Challenges for Cause 1. A juror may be challenged by a party for any of the following causes: 1) conviction of a felony; 2) want of any statutory qualification required to make that person a competent juror; 3) physical or mental defects rendering the person incapable of performing the duties of a juror; 4) consanguinity or affinity within the ninth degree to the adverse party; 5) being a conservator, guardian, ward, employer, employee, agent, landlord, tenant, family member, or member of the household of the adverse party; 6) being a client of the firm of any attorney engaged in the cause; 7) being a party adverse to the challenging party in any civil action, or having complained of or been accused by the challenging party in a criminal prosecution; 8) having already sat upon a trial of the same issues; 9) having served as a grand or trial juror in a criminal case based on the same transaction; 10) when it appears the juror has formed or expressed an unqualified opinion on the merits of the controversy, or shows a state of mind which will prevent the juror from rendering a just verdict; 11) being interested in an issue like the one being tried; 12) having requested, directly or indirectly, that the person s name be returned as a juror. I.R.C.P (6).

10 2. Remember that just because jurors appear to have a bias that may allow them to be challenged for cause and removed, the judge may still permit them to serve if it appears from their answers that they could still be a fair and impartial juror. It can be uncomfortable asking a prospective juror or judge to get excused for cause. One suggested script is to say that sometimes people have a duty NOT to serve on a certain jury, and given what you have said, would you mind if I ask the judge to excuse you from having to serve? 3. When using a challenge, always be aware that the juror you are seeking to remove might not be as bad for you as the juror who may take their seat. I. Limitations on the Use of Preemptory Challenges 1. Unlike challenges for cause, preemptory challenges allow for a juror to be removed without giving a reason for the removal. The number of preemptory challenges is limited, and should be used in advancing the attorney s case strategy. 2. Preemptory challenges may not be used to strike potential jurors on the basis of race or gender. See J.E.B. v. Alabama, 511 U.S. 127 (1994) (holding that striking jurors on basis of gender perpetuates stereotypes and is based on historical discrimination); Georgia v. McCollum, 505 U.S. 42 (1992) (holding that the defense s use of preemptory challenges to make racial exclusions was equally forbidden); Powers v. Ohio, 499 U.S. 400 (1991) (holding that the defendant does not have to be the same race as the challenged juror to challenge that juror s exclusion on the basis of race); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) (holding that in civil trials a party may not use preemptory challenges to exclude jurors on basis of race); Batson v. Kentucky, 476 U.S. 79 (1986) (holding that prosecutors may not exclude jurors on basis of race). J. Tools and Techniques That Can Help You Select the Right Jury 1. The pre-jury selection list of potential jurors, pretrial investigation of those potential jurors, pre-jury selection questionnaires, a profile of ideal jurors, and awareness of human nature are all helpful tools in selecting the right jury in a case.

11 2. It is also helpful, if possible, to have another person besides the attorney conducting voir dire to sit at counsel table while the questioning is taking place. That person can keep track of prospective juror s answers to questions, and construct a chart that will make it easier for the attorney to assess which jurors would be most helpful to their case and which jurors should be challenged and on what basis. 3. Trial notebook. 4. Scorecard them. 5. Trust your instincts 6. Reserve the right to make the final call. K. Using Jury Surveys and Questionnaires to Improve Your Success 1. A jury questionnaire is a supplemental tool to voir dire. It allows potential jurors to get the basic information out of the way. It is beneficial in several ways. Among other things, its use results in an increased likelihood of self-disclosure by the jurors, because they are not answering the questions out loud and in front of others. It avoids the confrontational aspect of public voir dire. It also helps the attorney conduct a more efficient voir dire. 2. Of course, jury questionnaires can also be useful after a trial is complete. A welldesigned jury questionnaire that is sent after a verdict is reached and the jury is dismissed can allow jurors to express their feelings about participating in a trial and their opinions about things that happened during the trial. Clear it with the presiding judge. Consider interviews instead of questionnaires if there may be a motion for new trial, and consider having a partner do the interviews..