Filing a critical motion in limine could be key to your trial.
What about 40 motions in limine?
Appellate attorney Frank Lowrey says he’s heard trial judges refer to these as "stupid motions in limine."
Do you still have to object if you filed a motion in limine? While a denial of a MIL preserves your objections, a deferred ruling preserves nothing.
Counsel must be prepared to make contemporaneous objections at every instance to preserve the objection.
Georgia appellate attorney Frank Lowrey joins Tim and Jeff to discuss Williams v. Harvey, a recent decision by the Georgia Supreme Court concerning preservation of error and motions in limine, in a June 2021 interview in episode 13 of the California Appellate Law Podcast.
Frank notes the important nuances in rulings on motions in limine: a denial preserves the evidentiary objections raised in the motion, while a deferred ruling (neither granting nor denying the motion) preserves nothing – meaning the trial attorney still needs to object to every instance of the offending matter.
Frank also notes that, in some jurisdictions, a curative instruction is presumes to cure any prejudice. This is the case in California, absent exceptional circumstances. (People v. Navarrete (2010) 181 Cal.App.4th 828, 834 ["Ordinarily, a curative instruction to disregard improper testimony is sufficient to protect a defendant from the injury of such testimony, and, ordinarily, we presume a jury is capable of following such an instruction."].) (One is reminded of the reaction of Dickens’s Mr. Bumble upon being informed the law presumed his wife acted under his direction: “If the law supposes that, the law is an ass — an idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”)
Frank, Tim and Jeff also discussed the recent California Court of Appeal opinion previously discussed on this blog finding an attorney in contempt for accusations made in an appellate brief, and discuss whether the court’s admonition against challenging the courts might be somewhat overstated.
There is an important point of trial practice about filing dispositive motions in limine in Tung v. Chicago Title (D1d3 Apr. 28, 2021) no. A151526 (published). That point is: Don't. The same point is made about relying on nonstatutory motions for judgment on the pleadings: Here is the quote to put in your opposition: "[W]e caution trial judges to be wary when choosing to decide an in limine motion that, no matter how captioned, functions as a nonstatutory motion for judgment on the pleadings, particularly when the motion is filed on the eve of trial. Doing so, under circumstances like those presented here, is a recipe for reversal."
Finally, there is also an excellent tip for expediting an appeal of an early catastrophic trial ruling and avoiding judgment collection pending appeal: dismissing remaining trivial claims (with prejudice), and stipulating to the prevailing party's fees and costs providing enforcement is to be stayed pending appeal. This was a shrewd move by appellant's counsel here, who served their client well.