5 Trial Lawyer • Winter 2022 countless times where I am faced with a lengthy set of motions in limine filed the day before trial, only to learn the following day there is no objection to most of the motions. Had the parties conferred about the motions, they could have saved time and money for their clients by not drafting the motions, and the judge would not have needed to spend time preparing for them. The right number of motions File as many motions as you need but no more. If there is a key issue on which you need a ruling and were not able to resolve with the other side, definitely file a motion to alert the court of the issue. But a lawyer does not get extra points for filing a long set of motions in limine. In fact, the more motions one files, the more likely it is that a particularly important motion might not seem as important because it is buried among with all the others. Just because the lawyer has filed a particular motion in limine in a prior case doesn't mean it needs to be filed in the current case. File early Even though state court rules may not require motions in limine to be filed until the day before trial, there is no rule prohibiting them from being filed early. The attorneys should confer well in advance of trial about a briefing schedule for motions that would allow for the opposing side to file a thoughtful written response. To those who think there is a strategic advantage in waiting until the last minute to file motions, believing this will put the other side at a disadvantage because they won’t be able to thoughtfully respond in writing, such thinking is misplaced and can actually hurt the moving party. If the issues have not been fleshed out enough the judge won't be in a position to make a decision as quickly or easily as if there was full briefing, so the default option is no action would be taken on the motion at the time and the parties would be left with uncertainty. A late motion which keeps the opposing party from filing a written response also hurts the moving party because they are then deprived of knowing the other side’s position and won't have time to fully digest and prepare for their argument when it is made orally. Make it easy to track the rulings It is important to have a method for easily tracking and remembering rulings, especially in complex, lengthy trials with many motions. If an evidentiary ruling occurs on the first day of trial but the actual issue does not arise until days or even weeks later while everyone is in the fog of trial, not everyone will remember what the ruling was so it is important to be able to quickly find the ruling. I find it helpful for the attorneys to give the judge a chart that lists each motion and perhaps a summary sentence, and includes columns where everyone can check a box indicating if the motion was granted, denied, or deferred, and a column to place additional comments. That way, all the rulings are in one easy-to-find place, as opposed to having to thumb through dozens of pages of briefing to find the motion and see what the ruling was. For cases with a small number of motions a chart may not be needed, but it is still helpful to include directly after each motion, but before any written legal argument, the words “granted” “denied” and “deferred” so everyone can keep track of the rulings by simply circling the word that corresponds to the ruling. The bottom line is the more thoughtful and intentional a lawyer is with motions in limine, the better the chance of having thoughtful rulings from the court, which can lead to a better outcome at trial. Judge Eric L. Dahlin serves at Multnomah County Circuit Court, 1200 SW 1st Ave. Portland, OR 97204. He can be reached at [email protected] or 971274-0666.
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