5 Elements of Opposing Motions in Limine

This material is reproduced from the CEB Blog™ entry, Be Ready to Oppose Motions in Limine, copyright 2014 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar - California. (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site, CEB.com).
In limine motions are a great litigation tool—they get evidence admitted or excluded before it’s even offered. You’ve probably been advised to use them whenever appropriate. But opposing counsel will also have received this advice and will use them against you. Here’s how to respond to opposing counsel’s in limine motion.

When confronted with opposing counsel’s in limine motion, first analyze whether they have included these five elements:

1. Counsel’s intention to move in limine to either exclude specified evidence or establish the order or presentation of evidence (e.g., to require the plaintiff to present direct evidence before circumstantial evidence).
2. Counsel’s reason for believing that you have the evidence and will offer it at trial.
3. Specific ground for excluding evidence (e.g., that it violates the attorney-client privilege (Evid C §§950-962) or will unduly prejudice the jury (Evid C §352).
4. Why it’s insufficient to object at trial (e.g., the jury shouldn’t hear the question).
5. Legal argument supporting the motion.

Be prepared to show that the court shouldn’t grant the motion or that opposing counsel hasn’t complied with the procedural requirements. If the opposing party’s motion in limine is in writing, ask the court for permission to prepare a written opposition to the motion.

Here’s what happens if court grants the opposing party’s motion:

• The court may prohibit you from mentioning or referring to the excluded evidence at any time during trial, including voir dire, opening statement, examination of witnesses and closing argument.
• The court may require you to instruct witnesses not to refer to this evidence during testimony.
• If the court order is either in writing or recorded in the minutes, the issue is preserved for appeal and the court will be able to hold you in contempt if you violate the order.

If the court decides to take the motion in limine under submission or indicates an inability to decide the issue until hearing further evidence, opposing counsel may request an interim order prohibiting you from referring to challenged evidence until the court has ruled on its admissibility.

Experienced judges, when confronted with motions in limine, are generally aware that by the time the issue comes up during the trial, the entire case may have taken on a very different perspective than it had at the outset. As a result, you can expect the judge will make all rulings on in limine motions conditional, reserving the power to revisit the issue should there be a new or unexpected development in the course of the trial.