4 Trial Lawyer • Winter 2022 By Judge Eric L. Dahlin Multnomah County Circuit Court Motions in limine are a valuable tool in the trial lawyer’s toolbox, if used appropriately. That statement is so elementary it seemingly doesn’t bear mentioning, yet even though the sentiment may be well understood, in practice it is not always followed. From a judge’s perspective, it feels that some motions in limine are an afterthought, as if the attorney went through a pre-trial check list that said to file motions in limine so they threw something together because they thought it would seem odd if they didn’t file something. Other times there may be very serious evidentiary issues that require significant explanation and thought, yet those issues are given short shrift, possibly because the attorney either did not think through the evidentiary issues earlier and/or simply did not start drafting the motions until the last minute. View From The Bench Hon. Eric L. Dahlin Making the best use of motions in limine If an evidentiary issue is not raised before trial but instead is raised in the middle of trial as the evidence is sought to be introduced, and if the issue is complicated and nuanced, there is a better than even chance the attorney raising the legal issue — either seeking to admit evidence or to exclude evidence — may not carry their burden and will not prevail, if for no other reason that it is not practical to take a lengthy break in the middle of a jury trial to argue and research a complicated issue. But if the issue is teed up ahead of time, not only will the moving party have a better opportunity to fully develop and articulate the argument, the judge will have an opportunity to think about it and digest the issue. It's more likely that the attorney will carry their burden on the motion if they raise it in a thoughtful manner rather than springing it on the other side — and the judge — for the first time in the middle of trial. Following are some additional tips to help make motions in limine more effective. Day one diligence Think about evidentiary issues starting on day one. It is helpful to start preparing a list of possible evidentiary issues the first day you get the case and keep updating that list throughout the life of the case. If you keep a running list you won’t forget to possibly raise an issue, and you can free up mental space by not having to remember these items. You will likely be able to scratch many of the items off your list, either after conferring with the other side or realizing there is not a disputed issue after all. It is much easier to subtract things from the list than it is to remember while in the throes of trial preparation every issue you once thought about. Confer meaningfully The parties should meaningfully confer on motions — i.e. actually have an intelligent, thoughtful discussion in an attempt to reach a resolution — before filing and, hopefully, even before drafting. The first step would be to have the moving party simply email the other side a list of the issues to see if there is any dispute, and then the lawyers should follow up with a phone call to hash out any differences. This simple act of conferral will likely knock out a large portion of the potential motions. There have been K e s t e n M e d i a Your client has a story to tell. Hire a communication professional to help tell it. VIDEOS • MULTIMEDIA PRESENTATIONS for mediation, arbitration or trial Michael Kesten, Emily Smith Harrington 503-804-0668, michael@kestenmedia.com, emily@kestenmedia.com
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