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Motion in Limine Strategies for an Appeal
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In the December 2012 publication of Plaintiff, a magazine for Northern California plaintiffs’ attorneys, an article entitled “How not to lose an appeal before it starts” explained how to prevent losing an appeal in civil cases.

One discussion the author gave was for a trial attorney not to fail to object to inadmissible evidence. Motions in Limine are the tool for objecting to evidence. For example, in a breach of contract case, a lawyer may be engaged to testify as an expert or deposed if the lawyer represented a party in the contract transaction in dispute.

  
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During the deposition of the expert or witness lawyer, the opposing party may inquire the lawyer if he or she has been involved in any malpractice action. If the attorney responds “yes,” the answer may create emotions in the fact finder if the information on the lawyer’s malpractice history is introduced as evidence at trial.

To prevent the malpractice information on the attorney’s past claims from being introduced, the party engaging the attorney as witness might file a Motion in Limine to request the court to exclude the evidence. The Motion in Limine would base the grounds for relief on that the malpractice claims of any lawsuits against the witness attoreny are of no relevance to the present case and introduction of such evidence will cause unfair prejudice on the part of the jury.

In a legal relevance objection, a party has to show the probative value is substantially outweighed by the probability that evidence admission will necessitate undue consumption of time, danger of undue prejudice, confusion on the issues, or misleading of the jury.

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Past claims against a lawyer for professional negligence when not related to a current case, are irrelevant to the issues in a current case, and lead to bias against the lawyer as a credible expert witness. If evidence of past claims against a lawyer witness for professional negligence is allowed at trial, the party using the lawyer as witness might have to counter with a full description of the case, which may delay decision on the current case.

The Motion in Limine stage, which usually occurs a few weeks before trial, can be when a lawsuit party learns for the first time the entire pretrial case strategy could altered by the exclusion of all or part of proper testimony of witnesses. In California, under Kelly v. New West Federal Savings (1996) 49 Cal. App.4th 659, a motion in limine to exclude an expert’s testimony must show: (1) expert’s opinions at deposition; (2) the expert was “closed out”; (3) opinions the expert plans to give at trial; and (4) opinions disclosed sufficiently in advance of trial.





 

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