Chapter 37 Motions in Limine

Transcription

1 Chapter 37 Motions in Limine by Anton R. Valukas, Robert R. Stauffer, and Christopher Tompkins* I. INTRODUCTION 37:1 Scope note II. STRATEGIC CONSIDERATIONS 37:2 Strategy, generally 37:3 Determining whether to file motion in limine 37:4 Other strategy considerations III. USES OF MOTIONS IN LIMINE A. IN GENERAL 37:5 Authority to bring motion in limine, generally B. IN CONJUNCTION WITH FEDERAL RULES OF EVIDENCE 37:6 Overview 37:7 Relevance issues under Rules 401 to 404(b) 37:8 Relevance issues under Fed. R. Evid. 407 to :9 Witness competency under Fed. R. Evid :10 Witness competency under Rule :11 Impeachment evidence under Fed. R. Evid :12 Expert testimony under Fed. R. Evid :13 Lay opinion testimony under Rule :14 Hearsay issues under Rules 801 to :15 Demonstrative exhibits 37:16 Motions in limine addressing other evidentiary issues *The authors would like to thank their former colleagues who provided invaluable input on previous editions of this chapter: Deborah R. Alexander; Julie L. Bentz; Robert J. Blazejowski; Thomas P. Monroe, Thomas S. O Neill; Mark D. Pollack; Seth A. Travis and William A. Von Hoene. The authors would also like to thank Christine M. Bowman and Michael T. Werner for their contributions to this edition. 631

2 C. TO ADDRESS NONEVIDENTIARY ISSUES 37:17 Issues of substantive law, generally 37:18 Legal duty of care 37:19 Statute of limitations 37:20 Determination of insurance coverage 37:21 Choice of law 37:22 Burden of proof 37:23 Parol evidence 37:24 Exclusion of claims and defenses 37:25 Determination of statutory limits of liability or damages 37:26 Availability of punitive damages 37:27 Bifurcation of proceedings 37:28 Jury trial 37:29 Motions in limine which seek resolution of substantive issues IV. APPELLATE ISSUES RELATING TO MOTION IN LIMINE PRACTICE 37:30 Overview 37:31 Requirement of contemporaneous trial objection 37:32 Waiver by offering evidence sought to be excluded V. PRACTICE CHECKLISTS BUSINESS AND COMMERCIAL LITIGATION 4TH 37:33 Checklist: time for filing motions in limine 37:34 Checklist: suggestions as to form and number of motions 37:35 Checklist: suggested procedures when motion to exclude evidence is denied 37:36 Checklist: suggested procedures where motion to exclude evidence is granted KeyCiteL: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on WestlawL. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials. I. INTRODUCTION 37:1 Scope note The motion in limine is an important, effective and flexible tool for shaping a trial lawyer s case and limiting the case of her opponent. Although commonly defined as any motion, whether 632

3 MOTIONS IN LIMINE 37:1 made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered, 1 the motion in limine is available not only as a means to exclude evidence, but also to confirm the admissibility of evidence in anticipation of an objection, to narrow the scope of admissible evidence, to alert the trial judge to evidentiary issues that must wait until the context of the trial for their resolution, or to raise other matters affecting the course of a trial. The motion in limine may have a direct, substantive effect on the outcome of the dispute. Resolution of an evidentiary issue raised by a motion in limine may lead to summary judgment against the losing party, 2 or may foster a previously unattainable settlement. This chapter explores the function of the motion in limine in modern commercial trial practice in the federal courts. It [Section 37:1] 1 Luce v. U.S., 469 U.S. 38, 40 n.2, 105 S. Ct. 460, 462 n.2, 83 L. Ed. 2d 443, 16 Fed. R. Evid. Serv. 833 (1984). See also Black s Law Dictionary (10th ed.) which defines a motion in limine as A pretrial request that certain inadmissible evidence not be referred to or offered at trial. Typically, a party makes this motion when it believes that mere mention of the evidence during trial would be highly prejudicial and could not be remedied by an instruction to disregard. If, after the motion is granted, the opposing party mentions or attempts to offer the evidence in the jury s presence, a mistrial may be ordered. A ruling on a motion in limine does not always preserve evidentiary error on appeal, a party may be required to formally object when the evidence is actually admitted or excluded during trial. To raise such an error on appeal, a party may be required to formally object when the evidence is actually admitted or excluded during trial. 2 See, e.g., Barnes v. Prudential Ins. Co., 76 F.3d 889, 891 (8th Cir. 1996) (in an action against insurer for negligent failure to give forms to insured so that he might change his beneficiary, the district court granted defendant s motion in limine to exclude all evidence of the insured s desire to change his beneficiary as hearsay and therefore granted summary judgment for the defendants because the plaintiffs had no admissible evidence. The Eighth Circuit disagreed, finding that some of the relevant evidence was not hearsay); Palmer v. VECO Inc., 68 F.3d 481 (9th Cir. 1995) (entering summary judgment for defendant after granting defendant s motion in limine to exclude all evidence on key issues as hearsay); Kaiser Aluminum & Chemical Sales, Inc. v. PPG Industries, Inc., 42 F.3d 1147, 25 U.C.C. Rep. Serv. 2d 331 (7th Cir. 1994) (district court granted defendant s motion in limine ruling paint buyer could not recover as consequential damages from paint seller the amounts expended in defending against and settling claims that arose from defects in the paint, therefore summary judgment on plaintiff s breach of implied warranty and indemnity claims was appropriate); Smith v. Duff and Phelps, Inc., 5 F.3d 488, R.I.C.O. Bus. Disp. Guide (CCH) P 8439, 27 Fed. R. Serv. 3d 273 (11th Cir. 1993) (directing verdict when motion in limine granted to exclude evidence as hearsay); INB Banking Co. v. Iron Peddlers, Inc., 993 F.2d 1291 (7th Cir. 1993) (in a conversion action, the district court granted the defendant s motion in limine to preclude evidence of unjust enrichment or waiver of conversion as irrelevant. Because this left the defendant without a defense, the defendant consented to judgment against it without waiving its right to appeal the motion in limine). 633

4 37:1 BUSINESS AND COMMERCIAL LITIGATION 4TH discusses strategic and tactical considerations which bear on whether to file motions in limine, and if so, when and how to do so; 3 the variety of uses to which counsel have put the motion in limine; 4 and issues affecting appeals from motion in limine rulings. 5 II. STRATEGIC CONSIDERATIONS 37:2 Strategy, generally Whether and how to employ motions in limine are strategy questions for which no hard and fast rules apply. The advantages and disadvantages of moving in limine depend on the particular facts of each case, the nature and importance of the subject of a proposed motion, budgetary considerations and overall trial strategy. It is imperative that counsel think about the motion in limine in the context of the entire case, giving consideration to the ways in which the evidence actually may be presented at trial, and analyzing the cause and effect of all possible outcomes to the proposed motion, including on counsel s own case. We set forth below in Sections 37:3 to 37:4 some of the factors that may bear on strategic decision making in this area. 37:3 Determining whether to file motion in limine The movant s primary objective is to avoid prejudice at trial by having evidentiary or other issues determined beforehand, rather than in the presence of the jury. Pretrial determination of evidentiary issues is desirable for many reasons, not the least of which is that counsel s trial strategy may depend on whether important evidence is or is not admitted at trial. For example, whether or not character evidence concerning the prior conduct of a key witness will be admitted may affect the entire trial presentations, from the opening statement forward, even though that witness is not scheduled to appear until the middle of a trial. In a sexual harassment case, the admissibility of evidence regarding either party s background (e.g., information regarding prior complaints against the defendant or lifestyle behavior of the plaintiff) may color the entire trial, even if only collateral to the actual incident at trial. The lingering uncertainty that results from failure to move in limine can create unnecessary, stressful and irreparable tactical dilemmas which could be avoided from the outset with a ruling in limine as to whether the evidence will be admitted. Likewise, the knowledge of whether key evidence will be admit- 3 See 37:2 to 37:4. 4 See 37:5 to 37:29. 5 See 37:30 to 37:

5 MOTIONS IN LIMINE 37:3 ted prior to trial may allow a litigant to avoid considerable expense and effort in gathering rebuttal evidence. For example, in the absence of a pretrial ruling on the admissibility of bad character evidence, counsel must prepare rebuttal evidence because the court may rule at trial that the character evidence the opponent seeks to introduce is in fact admissible. While motions in limine typically are filed by parties seeking to exclude evidence, a party may also seek a pretrial ruling as to whether the court will allow the moving party to admit certain evidence at trial. 1 If there is any doubt about whether the court will allow material evidence to be admitted, trial counsel may want to consider filing such a pretrial motion. Several countervailing considerations also merit counsel s attention. Less significant evidentiary issues may best be left for contemporaneous objections at trial because their resolution does not sufficiently affect overall trial strategy to justify the expense involved in preparing a motion in limine. 2 While the federal courts generally encourage the resolution of evidentiary issues prior to trial in order to streamline proceedings, federal judges have increasingly complained about the number of motions in limine they are required to consider. 3 Where a court is inundated with motions in limine, it may be less inclined to give careful consideration to those motions as it would be were a more limited number of motions presented. Moreover, some evidentiary issues are only amenable to decision based on what happens at trial. 4 Accordingly, some motions in limine may receive more attention [Section 37:3] 1 See, e.g., Brown v. Crown Equipment Corp., 445 F. Supp. 2d 59, 75 (D. Me. 2006) (denying motion to allow plaintiff to present evidence of caps on damages awards and to instruct the jury on caps on damages); Superhighway Consulting, Inc. v. Techwave, Inc., 1999 WL (N.D. Ill. 1999) (granting motion in limine to admit s and verbal admissions, finding the parol evidence rule did not render them inadmissible because the contract at issue was not fully integrated). 2 See, e.g., Mixed Chicks LLC v. Sally Beauty Supply LLC, 879 F. Supp. 2d 1093, (C.D. Cal. 2012) (identifying proper and improper reasons for bringing a motions in limine, and stating that an improper reason to file a motion in limine was to present all conceivable evidentiary objections that might arise at trial. ). 3 See, e.g., Huskey v. Ethicon, Inc., 2014 WL , at *1 (S.D. W. Va. 2014) ( The plaintiffs filed 15 motions in limine and Ethicon filed 19. Many of these motions are silly. For the vast majority of them, I simply cannot make a substantive ruling at this time without knowing the particular piece of evidence that a party seeks to introduce or argument that a party seeks to make. Nor can I make a ruling without knowing the context in which that party seeks to introduce such evidence or argument. In short, a blanket exclusion of such evidence or argument is premature at this time. ). 4 See, e.g. Koch v. Koch Industries, Inc., 2 F. Supp. 2d 1385, 1388, 49 Fed. 635

6 37:3 BUSINESS AND COMMERCIAL LITIGATION 4TH after the judge has already heard some of the evidence for which no admissibility problem has been raised, and counsel opposing a motion in limine to exclude evidence should consider focusing in part on why the matter is best resolved in open court rather than by a pretrial ruling. Motions are usually made at or near the time for filing the final pretrial order, and may be required as part of the final pretrial order. 5 Be sure to check the local rules to see if the court has procedures or deadlines for the filing of motions in limine. Some evidentiary motions may be deferred until trial; motions that involve important issues central to the case probably should be filed as far in advance of trial as possible. 6 Counsel should also consider whether a motion in limine, motion to strike, or a similarly styled motion, are appropriate at other stages of litigation rather than just prior to trial. For example, particularly given dicta in the Supreme Court s 2011 decision in Wal-Mart v. Dukes, 7 it may be appropriate to challenge the qualifications of experts at the class certification stage, a subject on which there R. Evid. Serv (D. Kan. 1998), clarified on denial of reconsideration, 6 F. Supp. 2d 1207 (D. Kan. 1998), aff d, 203 F.3d 1202, 53 Fed. R. Evid. Serv. 663, 46 Fed. R. Serv. 3d 204 (10th Cir. 2000) and aff d, 203 F.3d 1202, 53 Fed. R. Evid. Serv. 663, 46 Fed. R. Serv. 3d 204 (10th Cir. 2000) ( Still, the court believes the better practice is to wait until trial to rule on objections when admissibility substantially depends upon what facts may be developed there. ) (citations omitted). 5 See Chapter 34 Scheduling and Pretrial Conferences and Orders ( 34:1 et seq.) for further discussion of scheduling orders in federal litigation. 6 A litigant who waits too long before filing a motion in limine to address an issue that should have been raised earlier in the proceedings runs the risk of the court denying the motion as untimely. See De Saracho v. Custom Food Machinery, Inc., 206 F.3d 874, 55 Fed. R. Evid. Serv. 62, 45 Fed. R. Serv. 3d 1164 (9th Cir. 2000) (refusing to review merits of motion in limine challenging plaintiff s authorization to sue, in part because the issue should have been raised in a responsive pleading and was therefore untimely); JOM, Inc. v. Adell Plastics, Inc., 193 F.3d 47, 50-51, 44 Fed. R. Serv. 3d 1196, 39 U.C.C. Rep. Serv. 2d 609 (1st Cir. 1999) (affirming the district court s denial of the defendant s motions in limine where the defendant waited until the eve of trial to raise issues that should have been raised earlier in the proceedings). 7 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct. 2541, , 180 L. Ed. 2d 374, 112 Fair Empl. Prac. Cas. (BNA) 769, 94 Empl. Prac. Dec. (CCH) P 44193, 161 Lab. Cas. (CCH) P 35919, 78 Fed. R. Serv. 3d 1460 (2011) ( The parties dispute whether Bielby s testimony even met the standards for the admission of expert testimony under Federal Rule of Civil Procedure 702 and our Daubert case, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469, 27 U.S.P.Q.2d 1200, Prod. Liab. Rep. (CCH) P 13494, 37 Fed. R. Evid. Serv. 1, 23 Envtl. L. Rep (1993). The District Court concluded that Daubert did not apply to expert testimony at the class certification stage of class-action proceedings. 222 F.R.D., at 191. We doubt that this is so... ). 636

7 MOTIONS IN LIMINE 37:3 has been some disagreement among lower federal courts. 8 The Supreme Court did not as expected by some observers directly answer this question in its 2013 decision in Comcast Corp. v. Behrend, 9 except to observe that class certification requires a rigorous analysis. 10 Because motions in limine often are filed and ruled on in a matter of days in advance of trial, it is important that response briefs and reply briefs be filed promptly. If there is a briefing schedule, consider filing ahead of your due date. It should go without saying that failing to respond to a motion in limine may waive a party s right to introduce evidence addressed in the motion. 11 If there is no schedule, waste no time in filing responsive papers. This is especially critical when the court has status dates or other appearances on the pretrial calendar. It is not uncommon for some judges who have received motions in limine to rule 8 Compare In re Zurn Pex Plumbing Products Liability Litigation, 644 F.3d 604, 613, Prod. Liab. Rep. (CCH) P 18648, 79 Fed. R. Serv. 3d 1296 (8th Cir. 2011) (endorsing a limited Daubert inquiry at class certification), cert. dismissed, 133 S. Ct. 1752, 185 L. Ed. 2d 806 (2013) and Fosmire v. Progressive Max Ins. Co., 277 F.R.D. 625, 629, 80 Fed. R. Serv. 3d 1351 (W.D. Wash. 2011) (noting dispute about the scope of the required Daubert inquiry at class certification but finding the evidence inadmissible even under a more lenient standard) with In re Blood Reagents Antitrust Litigation, 783 F.3d 183, 187, Trade Cas. (CCH) 79122, 91 Fed. R. Serv. 3d 693 (3d Cir. 2015) (finding that plaintiff cannot rely on expert testimony at class certification unless it satisfies the standard in Daubert); Messner v. Northshore University HealthSystem, 669 F.3d 802, , Trade Cas. (CCH) (7th Cir. 2012) (endorsing full Daubert review of expert testimony on class certification issues); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982, 113 Fair Empl. Prac. Cas. (BNA) 496, 94 Empl. Prac. Dec. (CCH) P 44282, 80 Fed. R. Serv. 3d 832 (9th Cir. 2011) (same); Sher v. Raytheon Co., 419 Fed. Appx. 887, (11th Cir. 2011) (same) and American Honda Motor Co., Inc. v. Allen, 600 F.3d 813, , Prod. Liab. Rep. (CCH) P 18425, 76 Fed. R. Serv. 3d 809 (7th Cir. 2010) (same); In re ConAgra Foods, Inc., 90 F. Supp. 3d 919 (C.D. Cal. 2015) (following Dukes and finding that the Ninth Circuit conducts a Daubert analysis at the class certification stage only to determine whether the expert s opinions are reliable and relevant to determining Rule 23 requirements). Some courts have questioned the continued viability of Zurn in light of the Supreme Court s decision in Dukes. See Soutter v. Equifax Information Services LLC, 299 F.R.D. 126, 131 (E.D. Va. 2014). 9 Comcast Corp. v. Behrend, 133 S. Ct. 1426, 185 L. Ed. 2d 515, , Trade Cas. (CCH) 78316, 85 Fed. R. Serv. 3d 118 (2013). 10 Comcast v. Behrend, 133 S. Ct at See, e.g., Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, , 2006 A.M.C. 956, 70 Fed. R. Evid. Serv. 27, 2006, 2006 FED App. 0142P (6th Cir. 2006) (holding that plaintiff failed to preserve issue of admissibility of expert testimony where district court gave plaintiff multiple opportunities to respond to defendant s motion to exclude expert s testimony); Huskey v. Ethicon, Inc., 2014 WL , at *1 (S.D. W. Va. 2014) ( Many of the pending motions in limine are unopposed. There is no need for me to rule on such motions. The parties are expected to abide by those concessions. ). 637

8 37:3 BUSINESS AND COMMERCIAL LITIGATION 4TH on the motions in open court at the next scheduled status conference before the opponent has filed a response. While a judge may issue a tentative ruling only, counsel opposing the motion are in a more difficult position if the court has issued a preliminary ruling without the benefit of a brief. Counsel are urged to file response and reply briefs as soon as possible after receiving the opponent s papers. Because judges have differing views on the use of motions in limine, counsel should consider raising issues regarding the number of motions in limine and timing of filing motions in limine during premotion conferences with the judge. 12 By addressing motions in limine with the judge before the deadline for filing motions in limine, counsel may obtain important insight as to whether the trial judge favors or disfavors the filing of motions in limine. This insight can help counsel better determine her strategy for filing her motions. For example, if a judge disfavors motions in limine, counsel may decide to move in limine only on the most important issues and address issues of lesser importance, or that can be easily resolved, by objection at the trial. Conversely, if the judge indicates that she wants to address as many evidentiary issues as possible in advance of the trial, then counsel will want to carefully prepare a list of all potential evidentiary issues that should be addressed through a motion rather than a trial objection. In some cases, the trial judge may tell counsel that she plans to defer ruling on motions in limine until trial. In such instances, counsel should carefully evaluate whether any of her motions in limine will streamline the trial because the motion will, for example: (1) resolve an important issue in the case; (2) potentially reduce the number of witnesses called at trial; or (3) help avoid issues where a jury might otherwise be confused. After deciding whether any of her motions meet those criteria, counsel should then explain to the judge why the motion deals with an important trial issue and why dealing with the motion in advance of trial is the more economical approach. Also, this does not necessarily mean that filing of the motion should be deferred until trial because even if the judge defers the ruling, the litigant can still use the motion to argue that the disputed evidence should not be 12 See, e.g., Koch v. Koch Industries, Inc., 2 F. Supp. 2d 1385, 1388, 49 Fed. R. Evid. Serv (D. Kan. 1998), clarified on denial of reconsideration, 6 F. Supp. 2d 1207 (D. Kan. 1998), aff d, 203 F.3d 1202, 53 Fed. R. Evid. Serv. 663, 46 Fed. R. Serv. 3d 204 (10th Cir. 2000) and aff d, 203 F.3d 1202, 53 Fed. R. Evid. Serv. 663, 46 Fed. R. Serv. 3d 204 (10th Cir. 2000) (noting that some courts take a strict approach and defer motions in limine unless the evidence is clearly inadmissible on all grounds, but that [h]aving a deep appreciation for the potential savings from in limine rulings, this court does not take the strict approach followed by some courts. ). 638

9 MOTIONS IN LIMINE 37:3 referred to in the opponent s opening statement, pending resolution of the pending motion. Likewise, counsel also should consider conferring with opposing counsel before filing her motions in limine to determine whether there is an actual dispute between the parties on a particular evidentiary issue. Even a judge who encourages the use of motions in limine to streamline trials will appreciate that counsel has taken the time to confer on such matters before asking the court to rule on contested issues. However, counsel should only confer with her opponent on issues that will not require counsel to give her opponent a preview of her trial strategy. For example, in some cases, the parties may be able to work out an agreement on common or routine evidentiary issues. In some cases, a motion in limine to prohibit references to settlement discussions under Federal Rule of Evidence 408 may easily be resolved by agreement of the parties that is then presented to the court as a stipulation. Thus, in determining whether to file a motion in limine or how many motions in limine counsel will file, counsel should cautiously consider the advantages and disadvantages of moving in limine as well as other important considerations, including the trial judge s reputation for ruling on motions in limine, the importance of the motion or motions in counsel s trial strategy, and the importance of gaining a preview of your opponent s case. In devising her motion in limine strategy, counsel will want to do at least the following identify all potential motions in limine; as to each, decide whether pretrial determination of the issue will result in any material benefit to the client that will not be realized if resolution of the issue is deferred to trial; determine whether the issue is sufficiently complex that particularly careful analysis by the trial court prior to the trial is desirable; decide whether determination of the issue will affect presentation of other evidence, settlement prospects or other strategies; consider whether the factual background is sufficiently complicated that the court will be inclined to want to decide the motion only after hearing live evidence; know your court. Conduct appropriate research on prior rulings, carefully review the court s pretrial procedures 13 and interview lawyers who have previously tried complex matters 13 Counsel should check the local rules and the standing orders of the assigned judge to determine whether the district court or judge has any special rules applicable to motions in limine. See, e.g., Norton v. Assisted Living 639

10 37:3 BUSINESS AND COMMERCIAL LITIGATION 4TH before the judge to determine your judge s view of motions in limine in general; 14 analyze the strength of the law and facts in support of each motion; determine whether resolution of an important issue by way of a motion in limine may induce settlement where the strength or weakness of either side s case depends in significant part on the admissibility of disputed evidence; consider whether a motion in limine will compel an opposing party to disclose its trial strategies; modify or supplement motions in limine that are already on file as evidence becomes clearer in the days immediately preceding trial, or as developments occur in the case; make sure that the motion in limine is broad enough to cover all evidence that counsel seeks to have excluded and simultaneously identifies the evidence that counsel seeks to have excluded with as much specificity as possible. However, counsel should also remember that a motion in limine may properly be denied where it is too sweeping in scope or too general.; 15 and Concepts, Inc., 786 F. Supp. 2d 1173, 1188, 24 A.D. Cas. (BNA) 1061, 79 Fed. R. Serv. 3d 776 (E.D. Tex. 2011) (denying motion in limine where movant apparently has not complied with Local Rule[s]...and has not offered any reasons for its failure to comply but mercifully granting leave to refile in accordance with court rules). 14 Researching prior decisions or talking to other practitioners may be useful to determine a presiding judge s viewpoint on the utility of motions in limine. For example, in Cramer v. Sabine Trans. Co., the court stated that, [i]n a bench trial, such procedures [motions in limine] are unnecessary, as the Court can and does readily exclude from its consideration inappropriate evidence of whatever ilk. Cramer v. Sabine Transp. Co., 141 F. Supp. 2d 727, 733 (S.D. Tex. 2001). But other courts have expressed a different view. For example, in Estate of Rick v. Stevens, 2002 WL , at *2 (N.D. Iowa 2002), the court held that while there may be some even considerable merit to the Cramer court s view of the appropriateness of motions in limine in bench trials, prevent- [ing] allegedly prejudicial evidence from being so much as whispered before a jury...is not the only purpose of a motion in limine WL at *2. The court recognized that the primary purposes of an in limine ruling are to streamline the case for trial and to provide guidance to counsel regarding evidentiary issues WL at *3 (N.D. Iowa 2002), citing U.S. v. Luce, 713 F.2d 1236, 1239, 13 Fed. R. Evid. Serv (6th Cir. 1983), judgment aff d, 469 U.S. 38, 105 S. Ct. 460, 83 L. Ed. 2d 443, 16 Fed. R. Evid. Serv. 833 (1984). As another judge noted in denying a motion in limine in a bench trial case, This does not mean the pretrial briefing [on motions in limine], by both parties, in this case has gone to waste it will be a valuable aid to the Court when deciding the competence of the evidence presented. Americans United For Separation of Church and State v. Prison Fellowship Ministries, 395 F. Supp. 2d 805, 807 (S.D. Iowa 2005). 15 See, e.g., CadleRock Joint Venture, L.P. v. Royal Indem. Co., 872 F. Supp. 2d 592, 602 (N.D. Ohio 2012) (denying motion in limine to exclude hearsay 640

11 MOTIONS IN LIMINE 37:4 carefully consider how the evidence she seeks to exclude could be used at trial by her opponent, including through witness testimony, documents identified on her opponent s exhibit list, and opening statements. For example, a motion in limine to exclude irrelevant character evidence should seek to exclude testimony from all witnesses with knowledge about that evidence, documents that contain references to that evidence and statements made by opposing counsel relating to that evidence :4 Other strategy considerations The litigant must consider how the relief she seeks by motion in limine will impact her own evidence at trial; be mindful of the rule, be careful what you ask for you might get it. 1 For statements where movant failed to identify any specific documents or testimony that contained allegedly hearsay statements); U.S. v. Smith, 452 F.3d 323, 330, 70 Fed. R. Evid. Serv. 625 (4th Cir. 2006) (defendant did not preserve objection for appeal because its motion in limine asking that trial court refrain from any actions which may be interpreted by the jury as favoring the government over the defense especially regarding the Court questioning and rehabilitating witnesses lacked the required specificity ); Weiss v. La Suisse, Societe D Assurances Sur La Vie, 293 F. Supp. 2d 397, (S.D. N.Y. 2003) ( Here, Defendant s motion to dismiss all evidence regarding other policy holders, lacks sufficient specificity with respect to the evidence to be excluded. No particular documents or testimony have been identified in this motion. ) (citations omitted). 16 See, e.g., Waters v. Genesis Health Ventures, Inc., 400 F. Supp. 2d 814, 820, 96 Fair Empl. Prac. Cas. (BNA) 1839 (E.D. Pa. 2005) (denying defendant s motion in limine to preclude plaintiff from referring to evidence of fabrication of records during opening statement). [Section 37:4] 1 Compare Griffin v. Washington Convention Center, 142 F.3d 1308, 1312, 76 Fair Empl. Prac. Cas. (BNA) 1526, 49 Fed. R. Evid. Serv. 348 (D.C. Cir. 1998) (holding that the defendant opened the door to matters excluded by its own motion in limine by eliciting testimony on the issue) and Wood v. Morbark Industries, Inc., 70 F.3d 1201, 1208, Prod. Liab. Rep. (CCH) P 14457, 43 Fed. R. Evid. Serv. 269 (11th Cir. 1995) (trial court in products liability case appropriately permitted rebuttal evidence where defendant took unfair advantage of the court s in limine ruling and opened the door for rebuttal testimony regarding subsequent modifications to the chute ) with Webb v. ABF Freight System, Inc., 155 F.3d 1230, , 159 L.R.R.M. (BNA) 2129 (10th Cir. 1998) (rejecting defendant s argument that plaintiff opened the door to evidence that was excluded as part of an in limine ruling) and Elliott v. S.D. Warren Co., 134 F.3d 1, 7-8, 48 Fed. R. Evid. Serv. 782 (1st Cir. 1998) (holding that the defendant did not waive an earlier in limine ruling excluding any mention of insurance by failing to object to the introduction of an unredacted construction contract that included an insurance provision). Sometimes courts will expressly identity circumstances in which barred evidence will become admissible in the in limine order itself. See, e.g., Bruce v. City of Chicago, 2011 WL at *3-4 (N.D. Ill. 2011) (granting motion in limine to exclude evidence of indemnification of defendant but noting that the door would be opened to such evidence if the defendant claimed inability to pay); Fitzpatrick v. City of Fort Wayne,