Geraldine Weiss About
this Issue
Keep it out! Befriending the motion-in-limine process A good motion in limine can preclude the presentation of evidence deemed inadmissible and prejudicial before it is presented to the jury
[Ed. Note: This article was presented at the 2011 CAALA Las Vegas Convention] You just finished the deposition of
your client’s [apparently ex] best friend – a current employee of the defendant in the case. Your client omitted telling you about that big argument they recently had. The ex-best friend apparently har- bors a terrible grudge. Your client also forgot to tell you what he did with his ex-best friend’s wife, and various other wives. Apparently there was that little misdemeanor in a park. And what a small world – that same witness knows your ex, who had less than glowing things to say about you! Have no fear – your motion in lim-
ine is near, ready to protect you from unsuspected curve balls. It is a versatile companion to trial which, when used properly, will preclude the presentation of evidence deemed inadmissible and prejudicial before it is presented to the jury. (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 288; Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337.)
If you want to exclude irrelevant,
and sometimes ridiculous evidence, you must handle your motions in limine correctly, and persuade the court to exclude challenged evidence. If success- ful, you will achieve an early checkmate against your opposing counsel. Strategic and well crafted motions
may facilitate settlement before trial. However, if you end up going to trial, you will have avoided too many side bars and squabbles and there will be optimal consideration of evidentiary issues on proper merits. By resolving potentially critical issues at the outset, trial will be more efficient. (People v. Morris (1991) 53 Cal.3d 152, 188; Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 669-70.) You don’t want to try to “unring that
bell.” Know your case and what you real- istically can get excluded so that the bell does not chime in the first place. Please be kind to your new friend
and not misuse it. No court wants to be deluged with scores of motions in limine that should not have to be made. As with
any tool, effectiveness will be blunted with too much erroneous use. The court has read more motions in limine than you have ever made. Make yours read- able, succinct and to the point. Your first paragraphs should win or lose your bat- tle. Use key parts of the Evidence Code to succinctly quote with supporting cases, such as:
Evidence Code section 350 which supports the exclusion of irrelevant evidence by providing that “(n)o evi- dence is admissible except relevant evidence.” (People v. Kelly (1992) 1 Cal.4th 495, 523.) Evidence Code section 352 which
gives the court the authority to exclude evidence where the probative value is substantially outweighed by the danger of undue prejudice, issue confusion, misleading the jury, or undue con- sumption of time. (See People v. Cardenas (1982) 31 Cal.3d 897, 904.) Evidence Code section 402 which
allows the court to hear and determine the question of the admissibility of evi- dence outside the presence or hearing of the jury. Matters that are lacking in “factual
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support or argument” are not properly the subject of motions in limine. (Kelly, 49 Cal.App.4th at p. 670.) Take ten min- utes and read this case. It will help refine motion issues and help you to object to your opponent’s improper ones. The court should not have to rule in a vacu- um or guess at what evidence should be included within the scope of its ruling. Take another ten minutes and famil-
iarize yourself with local rules. A motion in limine filed before or during trial need not be accompanied by a notice of hearing but this is at the discretion of the trial judge. (Cal. Rules of Court, rule 31112(f).) The Superior Court of Los Angeles,
Local Rules, rule 3.25 (h) (2) states that in direct-calendar cases, parties must file
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