Motions in limine (“on or at the threshold” or “in the beginning”) are often a trial lawyer’s best friend and “can be a potent weapon when used properly and at the appropriate stage of litigation.” David Paul Horowitz, In the Beginning … Motions in Limine, 77-MAY N.Y. St. B.J. 16, 18 (May 2005). Such motions can and should be used prophylactically to prevent an opposing party from placing irrelevant and unfairly prejudicial evidence before the jury. Too often, however, motions in limine are improvidently filed, which not only wastes time, effort, and money, but can actually hurt your client’s case. This article discusses some of the pitfalls associated with improvident motions in limine and highlights preservation issues attendant to these motions.
Motions in limine often are filed to prevent the introduction of improper evidence, the “mere mention of which at trial would be prejudicial.” Buy-Low Save Ctrs., Inc. v. Glinert, 547 So. 2d 1283, 1284 (Fla. 4th DCA 1989); accord Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 187 (Fla. 3d DCA 2005). Those motions in limine should be carefully drafted to make clear precisely what evidence should be excluded and to explain with as much clarity as possible why the evidence is so prejudicial that its mere mention would be unfairly prejudicial. See Jennifer M. Miller, To Argue Is Human, to Exclude, Divine: The Role of Motions in Limine and the Importance of Preserving the Record on Appeal, 32 Am. J. Trial Advoc. 541, 547 (Spring 2009). While this should be obvious, it is unfortunately often not the case.
Instead, it is quite common to see motions in limine seeking to preclude the opposing party from generically violating a provision of Evidence Code. Similarly, many lawyers file motions seeking to exclude evidence that no seasoned trial lawyer would ever offer in evidence. Often, these motions are included as part of a massive “omnibus” motion in limine, in which the moving party seeks advisory rulings on a host of categories of evidence. See Randy Wilson, From My Side of the Bench, 59 The Advoc. (Texas) 74, 74-75 (Summer 2012). These sorts of generic motions should be avoided. Not only are they usually a waste of time and money to prepare, but such motions annoy trial judges. Id. Indeed, filing such a motion might well impair the moving attorney’s credibility when the judge disposes of the motion with a laconic: “I expect that all of the lawyers and witnesses will comply with the Evidence Code and Rules of Procedure during trial.”
There are other dangers that must be considered as well. For example, generic motions in limine may “draw the opposing party's attention to evidence or arguments which they may not have thought of before.” James J. Brosnahan, Motions In Limine in Federal Civil Trials, A.L.I.–A.B.A. Continuing Legal Educ., SJ035 ALI-ABA 857 (2001). While this may be unlikely in pattern litigation or where extensive discovery has been completed, this danger is heightened where discovery was limited or when facing an inexperienced opponent. Accordingly, tailoring your motions in limine to your particular case is critical.
Another potential pitfall is filing a motion in limine that is, in effect, an unnoticed motion for summary judgment. See Rice v. Kelly, 483 So. 2d 559, 560 (Fla. 4th DCA 1986) (cautioning “trial courts not to allow ‘motions in limine’ to be used as unwritten and unnoticed motions for partial summary judgment or motions to dismiss”). When a motion in limine disposes of an element of a party’s claim or defense, granting the motion constitutes harmful error unless the timing provision of the rule governing summary judgment is complied with and the standards for such a judgment are satisfied. See Buy–Low Save Ctrs., Inc. v. Glinert, 547 So. 2d 1283, 1284 (Fla. 4th DCA 1989); Brock v. G.D. Searle & Co., 530 So. 2d 428, 430-31 (Fla. 1st DCA 1988). Accordingly, counsel should carefully consider the actual and practical effect of an order granting a motion in limine. If, in fact, such a motion would be more fairly characterized as a summary judgment, counsel should comply with the rules governing such motions.
Further, filing a motion in limine can lull a party into a sense of complacency concerning preservation of the record. Under the Florida Evidence Code and the Federal Rules of Evidence, a “definitive ruling” on a motion in limine is sufficient to preserve an issue for appeal and a party need not renew an objection during trial. See § 90.104(1)(b), Fla. Stat.; Fed. R. Evid. 103(b). Unfortunately, the definition of “definitive ruling” was described by its drafters as being “fuzzy around the edges.” Charles Alan Wright, Kenneth W. Graham, Jr., Victor James Gold, Michael H. Graham, Federal Practice and Procedure, § 5037.15 (2d ed. 2005) (citation omitted). Accordingly, counsel must either ensure the judge makes a clear ruling or renew his or her objection at trial. See USAA Cas. Ins. Co. v. Allen, 17 So. 3d 1270, 1272 (Fla. 4th DCA 2009).
By the same token, even a definitive ruling on one ground will not be sufficient to preserve error as it relates to other bases for exclusion of evidence. Cf. Thomas v. State, 645 So. 2d 185 (Fla. 3d DCA 1994) (“In order to preserve an issue for appellate review there must be an objection in the trial court which raises the specific grounds and legal argument upon which the objection is based.”); Miller v. State, 991 So. 2d 946 (Fla. 1st DCA 2008) (recognizing that the failure to secure a ruling on a specific objection is a waiver and does not preserve the issue for appeal). For example, if you move in limine to exclude evidence as hearsay and irrelevant, and the judge overrules the motion by finding the evidence is not hearsay; you must renew your objection based on relevance at the time of trial. Similarly, if it becomes apparent that the evidence is also both unfairly prejudicial and cumulative in light of what has ensued at trial, you must object to the evidence when it is offered on these new bases, or you will have waived these objections. Your objection also will help establish prejudice on appeal, showing this is not just something appellate counsel came up with after an adverse verdict.
Along the same lines, “when an evidentiary ruling is made before trial based upon representations as to how the evidence will unfold, the judge's ruling is ‘definitive’ only as to the facts as represented.” Powell v. State, 79 So. 3d 921, 923 (Fla. 5th DCA 2012). Thus, if “the evidence introduced at trial materially differs from the pre-trial representations relevant to an issue addressed in a motion in limine, we believe it to be incumbent upon the objecting party to revisit the issue in light of the changed circumstances.” Id.
In all events, when a motion in limine is granted against you, you should proffer the evidence at trial as completely as possible. See, e.g., Aarmada Protection Sys. 2000, Inc. v. Yandell, 73 So. 2d 893, 898 (Fla. 4th DCA 2011) (“When the trial court excluded evidence, an offer of proof is generally necessary if the claimed evidentiary error is to be preserved for appellate review.”); Spindler v. Brito-Deforge, 726 So. 2d 963, 964 (Fla. 5th DCA 2000) (recognizing that, where a motion in limine is tentatively granted and the judge indicates a willingness to reconsider, a proffer of the testimony is necessary to preserve the issue for appeal). This can be done in a variety of ways – filing deposition testimony or an expert’s report, calling the witness live to answer the questions you pose, or giving a narrative of what the witness would testify to if called to the stand. And, be watchful for any evidence by the other side that may “open the door” to this previously excluded evidence.
Finally, keep in mind that many times the trial judge that hears a motion in limine will be either new to the case or generally unfamiliar with the evidence sought to be excluded. In that situation, typically the judge will deny the motion and defer ruling until he or she hears some of the evidence in trial and has a better handle on the issues. There is certainly nothing wrong with a judge’s decision to defer ruling until later in the case. See Philip J. Padovano, 2 Fla. Prac., Appellate Practice § 8:5 (2013 ed.); see also, e.g., Spindler, 726 So. 2d at 964 (recognizing that a trial court can make a tentative pretrial ruling on a motion in limine, but that the “shifting sands of trial may cause a judge to rethink an earlier evidentiary ruling based on a matured understanding of the case.”). Nonetheless, in many cases, the initial denial of the motion in limine will effectively foreclose full reconsideration of the motion, as the opposing party may convince the judge that “you’ve already considered this and denied the motion.” Having a transcript can help prevent this occurrence, but it is no guarantee. This does not mean that you should not file a motion in limine to exclude improper evidence, but you must balance the risks associated with an early denial of the motion with the benefits you might gain if the judge hears opening statement and some evidence, thereby placing the court in a better position to rule on the merits of the evidentiary issue.
In conclusion, as Judge Wilson cogently explained, motions in limine “are not motions to dismiss or motions for summary judgment, but neither are they pro forma afterthoughts.” Wilson, From My Side of the Bench, 59 The Advoc. (Texas) at 75. Rather than file scattershot motions that will annoy trial judges and might tip off the opposing party to an issue he or she overlooked, counsel should “[f]ocus on the issues that really matter to your case and how to most persuasively present them.” Id.