Trial Magazine

When prioritizing pretrial actions, lawyers often place motions in limine on the back burner. If a scheduling order sets a deadline for these motions, it is usually on the eve of trial. And with no scheduling order, we often move to exclude evidence on the first day of trial or in a random manner as issues arise. But by not thinking about motions in limine until the last minute, we miss opportunities to strengthen our cases.

Last-minute motions in limine often amount to claims of unfair prejudice supported mostly by the emotional force with which a lawyer can argue. Make sure your motions have substantive support.

To make better motions in limine, ask yourself the following five questions:

1. What is opposing counsel’s trial strategy?
2. What evidence supports that strategy?
3. Is there case law from any jurisdiction that limits the use of that strategy?
4. Do any academic or news articles suggest that the introduction of the type of evidence supporting that strategy is prejudicial?
5. Is there a way to make the most prejudicial evidence redundant or unreliable?

In a recent case, opposing counsel’s deposition questions and requests for admission showed they intended to use our client’s incomplete tax returns and employment records to cast doubt on his lost wages and future earnings claim. By thinking about motions early, we compiled relevant case law to exclude evidence of his failure to file tax returns.

Once you identify a strategy, you should revisit questions two through five frequently and use the evolving answers to refine your pretrial approach. Keep a folder of relevant cases, articles, and notes that can help you construct a solid foundation for your arguments.

Christopher J. Bryant is an attorney at Yarborough ­Applegate in Charleston, S.C. He can be reached at  chris@yarboroughapplegate.com.