Winning Before Trial Even Starts: Effective Motions in Limine

Author: Daniel Fallon

“Ready, set, GO!” With those words, the trial judge tells the attorneys to proceed with opening statements. The trial has commenced. The battle is on! Or so we are led to believe. Any attorney or claims professional worth their salt knows a simple truth – the battle was already fought before the word “GO!” When handled effectively, motions in limine can define the scope of evidence to be heard, and the general tenor of a trial, so as to position one side for victory. Hopefully, your side!

Almost as much as arguing, lawyers love their Latin. Here, motions in limine are those brought on the “threshold” of trial. Right before crossing into the sacred domain of a jury trial, the attorneys and judge debate and consider what evidence should and should not cross that threshold to be brought before the jury. While the law places utmost responsibility on the jury, it remains sensitive to overburdening or confusing jurors with issues and arguments that might distract them from their ultimate job of determining fault and damages. For many sound reasons, it is more efficient and fair to have the judge make some pre-trial determination on issues of particular prejudice or importance to the parties.

Let’s take, for example, the issue of medical costs in a personal injury case. The plaintiff’s attorney would like to refer to and offer evidence of the amounts billed by the plaintiff’s medical providers, as such amounts are greater than the payments the providers actually accepted in satisfaction of those bills. The defendant’s attorney, on the other hand, would like to prevent any mention of the billed amounts as confusing to a jury in light of the legal standard allowing recovery only for the lesser of the amount paid or otherwise reasonable. (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th, 541, 548.) In this scenario, the defense counsel would be well advised to file a motion in limine seeking to preclude any reference to the full-billed amounts of medical charges.

The purpose of this, and any other well-timed motion in limine, is to avoid a situation in which the jury is improperly exposed to some confusing, incorrect or downright salacious information or testimony that could cloud its better judgment. In our example, this could include plaintiff’s counsel in opening statement indicating her client’s medical bills amounted to one million dollars. Once those seven figures leave counsel’s lips and reach the jurors’ ears, the damage has been done. The bell has been rung. It will not be rectified by an argument from defense counsel regarding the fact the medical providers accepted a mere $200,000 in satisfaction of the million dollar charges. The damage will not be undone by the judge striking the statement from the record and instructing the jury to ignore counsel’s statements. While such an instruction is nice in theory, no juror will forget hearing the word “MILLION” when it comes time for deliberation.

This is where a motion in limine is most effective – it avoids the futile attempt during trial to “unring the bell” sounding in the jury’s collective mind. (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337.) In this case – millions of bells! Better to not let those cross the threshold by establishing a sound strategy for motions in limine to win trial before it even starts.

ABOUT THE AUTHOR: Mr. Fallon specializes in civil litigation in the areas of professional liability. He has significant experience executing litigation strategies to the benefit of his individual and corporate clients. Contact Dan at 858.263.4132 or dfallon@tysonmendes.com.

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