By Frederick R. Petti and Robert H. McKirgan
Published in American Bar Association Trial Evidence Journal
Winter 2007

We recently handled a civil matter in which our client was alleged to have mistreated his former spouse.  During the investigation of the spouse’s case, we discovered that the spouse had made similar claims of mistreatment during her divorce proceeding against her first husband.  Moreover, we discovered that the spouse had been convicted of criminal contempt during those proceedings, and that the court had sentenced her to jail for a period of 48 hours.  The court based its findings on false testimony provided by the spouse and the spouse’s solicitation of a third party to commit perjury.  Given the great impeachment value of the spouse’s prior conviction, as well as the similarity between the matter in which she perjured herself and the case we were defending, we were excited to have this evidence and wanted to use it if the case was ever tried.

However, from an evidentiary standpoint, there was a problem with the spouse’s conviction.  Even though the date of the spouse’s criminal contempt conviction was still less than 10 years old, the 10th anniversary of the conviction would occur prior to the start of the trial in the matter we were handling.  We knew that the Arizona Rules of Evidence provide that any conviction that is more than 10 years old is presumptively inadmissible unless the proponent gives the adverse party sufficient advance written notice to contest the use and the court then determines that the probative value of the prior conviction substantially outweighs the prejudicial effect.[1]  Because this was an evidentiary issue, we decided to file a motion in limine asking the court to make a determination of the admissibility of the spouse’s prior conviction.

The lawyer on the other side of the case was a very seasoned and well-respected practitioner, a lawyer to whom we regularly referred matters.  Consequently, we were surprised when we saw his response to our motion in limine.  In that response, the lawyer wrote that motions in limine are “by definition” designed to preclude the admission of evidence, and that it was inappropriate for us to move in limine for the admission of evidence.  We simply could not believe that our opponent did not realize that motions in limine are used both to prequalify evidence (offensively) and to request a pretrial ruling precluding certain evidence (defensively).[2]

Because we were so surprised by our opponent’s response to our use of an offensive motion in limine, we thought it might be helpful to remind litigators that such motions can be effective tools and discuss the reasons why a litigator might want to file such a motion.

Legal Basis for the Use of Offensive Motions in Limine

As translated from its Latin origins, the term in limine means “at the threshold” or “at the outset.”[3]  Although motions in limine are not expressly sanctioned by the Federal Rules of Evidence, courts and litigants rely heavily on them to clarify and address issues of admissibility prior to trial.  The authority for filing motions in limine is found in Rules 104(a) and 103(c) of the Federal Rules, which authorize courts to control pretrial proceedings and resolve preliminary questions or evidence.[4]  Motions in limine are intended to secure advance rulings by trial judges on questions of evidence admissibility.

Despite the fact that motions in limine are most frequently used to seek the exclusion of evidence at trial, treatises and court decisions commonly recognize that such motions can be used in an offensive manner as well.  For example, in Federal Practice and Procedure, Wright and Graham state that motions in limine may be used offensively by litigants to procure a definitive ruling on the admissibility of evidence at the outset of trial.[5]  Likewise, the Federal Rules of Evidence Manual explains that “a party who is concerned about the admissibility of evidence it intends to proffer may find it advisable to seek an advance ruling” through an offensive motion in limine.[6]  Finally, in a general discussion on motions in limine, the Federal Evidence Practice Guide explains that they may be used defensively to preclude anticipated evidence, “or they may be used offensively to prequalify favorable evidence.”[7]

Many federal and state court decisions document a general acceptance of offensive motions in limine.  Although these decisions do not expressly analyze the appropriateness of filing offensive motions in limine, the willingness of the courts to grant offensive motions in limine with no additional comment or admonition certainly supports the position that such motions are proper.[8]  In United States v. Chan, the government sought a motion in limine seeking advanced permission to introduce plea allocations of three of the defendants’ co-conspirators.  In granting the motion, the Chan court explained, “The purpose of a motion in limine is to allow the trial court to rule in advance of a trial on the admissibility and relevance of certain forecasted evidence.”[9]  Given the implicit acceptance of the practice of filing offensive motions in limine, the Chan decision is not surprising.  It is also important to remember the U.S. Supreme Court has noted that “although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court’s inherent authority to manage the course of trials.”[10]

Reasons for Filing Offensive Motions in Limine

A popular rephrasing of Ockham’s razor is that “the simplest explanation is the best one.”[11]  Adopting that principle, the obvious reason for filing an offensive motion in limine is to get an advanced ruling that an item of evidence is admissible.  There flows from this simple reason many ancillary benefits, which counsel should consider during the pretrial phase of litigation.

Help Force Settlement

If there is an item of evidence that is crucial, if not dispositive, in a case, why not seek an advanced ruling from the court on the admissibility of that evidence in an effort to drive settlement discussions?  Litigators routinely file motions for summary judgment for such a purpose.  Clarity on important evidentiary issues to parties allows a great ability to evaluate the strength and weakness of their cases.  In our experience, such clarity reduces posturing during settlement discussions and leads to honest, frank discussions.  It is axiomatic that when parties are speaking honestly and frankly, the possibility arises for parties to resolve their differences and reach a consensus.  Filing offensive motions in limine can help parties get to this point and settle cases.

Opening Statements

If a certain item of evidence is important to a litigator’s case, the litigator most likely will want to discuss that item during opening statements.  The same is true for important summary charts.  If an offense motion in limine has been filed and ruled on favorably by the court, then there is no danger in discussing either the evidence or chart during opening statements.  On the other hand, if a litigator discusses evidence during the litigator’s opening statement and the court later rules that the evidence is inadmissible, the jury is likely to remember the overstatement and lose trust in what the litigator says.  Moreover, if the jury has forgotten about the promised evidence, a litigator can rest assured that his or her opponent will point out to the jury that the promised evidence was never presented.  Filing an offensive motion in limine can take the guess work out of opening statements.

Help Ensure That You Get the Evidentiary Ruling You Want

Judges are busy.  During trial, a judge’s other responsibilities do not end.  Judges also can get distracted during trial, especially if the trial is a long one.  If an item of evidence is critical to a litigant’s case, why leave it to chance that a judge will be focused on any evidentiary nuance necessary to evaluate the admissibility of the evidence at the time a litigant moves that evidence?  If a litigator files an offensive motion in limine, the litigator is much more likely to get an accurate ruling from the court.  Filing an offensive motion in limine will ensure that the matter has been adequately briefed and, hopefully, give the court adequate time to consider the evidentiary issue.

The following is a practice example of why a litigant may want to file an offensive motionin limine to ensure an accurate ruling from the court.  During the impeachment trial of former Arizona Governor Evan Mecham, the special prosecutor filed with the Court of Impeachment a motion in limine concerning the ability to impeach Governor Mecham with specific instances in which the governor, a former car dealer, had been accused of fraud under Rule 608(b) of the Arizona Rules of Evidence.  After considering the motion, the chief justice of the Arizona Supreme Court, sitting as the presiding officer of the Court of Impeachment, determined that Governor Mecham could be impeached only if he testified that no one had ever accused him of being dishonest.  When the time came for Governor Mecham to be cross-examined, he surprisingly testified that no one had ever accused him of being dishonest.  Because the special prosecutor had filed a motion in limine on the issue, the chief justice was able to consider the evidentiary issues regarding the proposed impeachment prior to the moment in trial when the special prosecutor wanted to use the evidence to impeach Governor Mecham.  The chief justice allowed the cross-examination, and it was effective.[12]

Show the Court That You Know What You Are Doing

Another reason to file offensive motions in limine is to help build confidence in the judge that a litigator understands the rules of evidence and knows how to properly move an exhibit into evidence.  This is especially true when a litigator has little or no experience in front of a particular judge.  By filing well-taken offensive motions in limine prior to trial, a litigator can demonstrate to the judge that the judge can have confidence that the litigator knows the Rules of Evidence and speaks from a position of substance when addressing the court on evidentiary issues.  In our experience, judges look for litigators to help them make the proper evidentiary rulings and, during the course of a trial, judges rely on litigators who appear to know what they are talking about.

So what happened in our case in which we asked the court to rule that we could impeach the plaintiff with her prior conviction for perjury?  There was a hearing on our motion, and the judge stated that, although he wanted to take some more evidence on the matter, he was inclined to allow us to impeach the plaintiff with her prior conviction.  Shortly thereafter, the plaintiff, who had resisted all earlier settlement discussions, suggested that we mediate the matter.  At the conclusion of the mediation, the case was settled in a way that was very advantageous for our client.

We hope that after litigators read this article, they will remember that motions in limine can be used both defensively and offensively, and that there are several good reasons to consider filing offensive motions in limine.

[1] See Ariz. R. Evid. 609(b).

[2] See Federal Evidence Practice Guide § 3.04[4] (Joseph M. McLaughlin ed., 1996).

[3] See Black’s Law Dictionary 791 (7th ed. 1999); 75 Am. Jur. 2d Trials § 94, at 306 (1991).

[4] See 21 Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice and Procedure § 5037.10 (2005).

[5] See id.

[6] Stephen A. Saltzburg et al., Federal Rules of Evidence Manual 34-35 (7th ed. 1998).

[7] Federal Evidence Practice Guide, supra note 2, at 3-59-60.

[8] See Gibbs v. Frank, 387 F.3d 268, 271 (3d Cir. 2004) (“[T]he Commonwealth movedin limine for permission to call Sadoff as a witness to testify about the inculpatory statements Gibbs made to him.  The court granted the Commonwealth’s motion . . .”); United States v. Vangates, 287 F.3d 1315, 1318 (11th Cir. 2002) (“Prior to trial, the Government filed a motion in limine seeking permission to use the testimony and exhibits from the civil trial . . . [T]he magistrate judge issued a Memorandum and Order granting in part the motion in limine.”); United States v. Short, 4 F.3d 475, 478 (7th Cir. 1993) (“Before trial, the government moved in limine for permission to introduce testimony . . . [T]he district court granted the motion.”).

[9] 184 F. Supp. 2d 337, 340 (S.D.N.Y. 2002) (the government’s motion was granted).

[10] See Luce v. United States, 469 U.S. 38, 41 n.4 (1984).

[11] Ockham’s razor is a principle attributed to the fourteenth-century English logician and Franciscan friar William of Ockham.  His principle, sometime referred to as the law of succinctness, was that “entities should not be multiplied beyond necessity.”

[12] One of the authors of this article, Mr. Petti, was a law clerk to Chief Justice Frank X. Gordon Jr. when the chief justice served as the presiding officer of the Court of Impeachment of Governor Evan Mecham in 1988.  The governor was convicted by the Arizona Senate and removed from office.