1. Strategies for Getting Evidence Authenticated Beyond Set Criteria Guide
There are multiple methods for getting your evidence authenticated for your case. The conventional methods consist of interrogatories, requests for production or admission, and depositions. Normally, any evidence that is presented in the course of any of these aforementioned discovery methods is presented to the court as being authenticated because the opposing counsel included it in their responses or production of evidentiary material. There are also multiple other methods of authenticating your evidence. These methods include judicial notice, accumulation of evidence, stipulations negotiated with opposing counsel, and using motions in Limine. We will dedicate time to all these topics during this presentation with the goal of giving you a better understanding of how to authenticate your evidence beyond the traditional criteria.
2. Use of Pre-Trial Options to Authenticate
Most of the pre-trial options are going to be your more traditional methods for discovery and authentication. As we previously mentioned, these methods are the use of interrogatories, using requests for production, and employing depositions among the appropriate parties. All of these methods are used in during the course of standard divorce proceedings, and tend to reveal a lot of information. Even if they don’t reveal the information that you might hope to discover, they normally tend to reveal leads or sources where the information can be obtained.
Typically, interrogatories are aimed at gathering initial information and facts that the opposing party could not recall without reference to particular documents. Interrogatories, in conjunction with Requests for Production then serve to produce the traditional sources of information for a divorce attorney. The evidence that usually reveals valuable information in these traditional pre-trial methods of discovery are bank statements, individual tax returns, corporate or partnership tax returns, mortgage statements, rental or lease agreements, and telephone records. Now, however, we have a broader array of materials with which we can target these traditional discovery tools. These new materials can be used for the same purpose. These items include, but are not limited to home and work computers, cell phones, tablets, other various personal electronic devices, flash drives, external hard drives, and cloud storage.
When conducting discovery using these traditional pre-trial methods, try to keep in mind that with all this information, there is no guarantee that your case will be successful. However, solid preparation will drastically increase your chances of success at settlement or at trial later.
A request for admission in regards to authenticating evidence falls under Fed. R. Civ. P. 36. This rule that governs admissions states that:
(a) Scope. A party may serve any other party a written request to admit, for purposed of the pending action only, the truth of any matters within the scope of Rule 26(b)(1)to:
(i) The facts, the application of law to fact, or opinions about either; and
(ii) The genuineness of any described documents.
(b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding.
29A Am. Jur. 2d Evidence § 1053.
An admission of authenticity can also be utilized at a pre-trial conference. The rule that governs this method is Fed. R. Civ. P. 16(c)(2)(c). This rule states that:
(c)(2) Matters for Consideration. At any pre-trial conference, the court may consider and take appropriate action of the following matters:
(c) Obtaining admissions and stipulations about facts and documents to avoid unnecessary proof and ruling in advance on the admissibility of evidence.
The last traditional method could be utilized is attaching of a document as an appendix to pleadings. The rule that governs this method is Fed. R. Civ. P. 10(c). The rule states that:
(c) Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is part of the pleading for all purposes.
It’s important to keep in mind that when reviewing all of the methods for evidence to become authenticated and admitted, there needs to be thought given to the most appropriate method given the type of evidence you are trying to authenticate.
3. Judicial Notice of Electronic Evidence
An additional method that is often overlooked is utilizing Fed. R. Evid. 201(b). This rule governs the judicial notice of evidence. The purpose of this rule is to alleviate the expenditure of resources during the discovery and authentication process. For the evidence to be authenticated in this manner, Fed. R. Evid. 201(b) states that the fact must not be subject to reasonable dispute. A perfect case to demonstrate the use of judicial notice in a more contemporary scope is United States v. Brooks.
In Brooks, the court analyzed the admissibility of global positioning system (GPS) data that was presented at trial. The defendant challenged this data, noting that it was subject to reasonable dispute. The court took judicial notice of the reliability and accuracy of GPS data, stating that, “[c]ourts routinely rely on GPS technology to supervise individuals on probation […] and, in assessing the Fourth Amendment constraints associated with GPS tracking, courts generally have assumed the technology’s accuracy.”
The courts have admitted government websites and any data include therein. This is mainly because the information can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. The government data and information from websites, might fall under self-authentication of Fed. R. Evid. 902.
Courts have taken time to analyze the admissibility of information from private websites under the use of judicial notice. The case that embodies this concept is O’Toole v. Northrup Grumman Corporation.
In O’Toole, the court looked at judicial notice of the lower court recognizing the facts of a retirement fund’s earning history from the respondent’s website. The lower court reasoned that the court should take judicial notice of these facts regarding retirement fund earnings because the respondent could not reasonably explain how it would otherwise be unreliable and inaccurate. The 10th Circuit Court recognized the reasoning of the lower court as valid, and affirmed the lower’s court’s judicial notice.
An attorney could also use affidavits to authenticate evidence. This is particularly appropriate for moving for summary judgment under Fed. R. Civ. P. 56. The affidavit evidence normally would face hearsay issues, but not when submitted in a summary judgment context.
4. Accumulation of Evidence to Prove Authenticity
An additional method to prove authenticity is the accumulation of evidence. This concept is applicable in a general context, as well as a more specific context. Before we get into the details of accumulation of evidence to prove authenticity, it is important to recall Fed. R. Evid. 901, which states that authentication standards are satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be.
Generally, in the context of Fed. R. Evid. 901, an accumulation of evidence can prove to satisfy this standard. The more extrinsic evidence you have surrounding the evidence desired to be submitted, the more likely you will have success in admitting it. Items that fall under Fed. R. Evid. 902 do not need the extrinsic evidence to prove authenticity, but items such as:
- Testimony of a witness with knowledge;
- Non-expert opinion about handwriting;
- Comparison by an expert witness or the trier of fact;
- Distinctive characteristics and the like;
- Opinion about a voice;
- Evidence about a telephone conversation;
- Evidence about public records;
- Evidence about ancient documents or data compilations;
- Evidence about a process or system; and
- Other methods provided by a statute or rule.
All of these items require extrinsic evidence in order to authenticate. It logically follows that the more surrounding evidence you have, the possibility of success dramatically increases.
For a more specific look at two sections under Fed. R. Evid. 901, 901(b)(3) and 901(b)(4), the accumulation of evidence is imperative. Fed. R. Evid. 901(b)(3) speaks to comparing already admitted evidence to evidence seeking to be authenticated. This concept of comparison speaks to the very nature of accumulating evidence to prove authenticity. The more evidence that you have that is already authenticated, the more you have to compare evidence to. This should always be in the back of your mind when seeking approaches on how to authenticate and admit.
Fed. R. Evid. 901(b)(4) addresses the distinctive characteristics of evidence. This rule is especially relevant with regards to electronically stored information (hereinafter referred to as “ESI”) evidence. With the rapid advances in technology, it seems crucial that this specific rule be addressed. Now in regards to the accumulation, general appearance, content, substance, internal patterns, and other characteristics of the like taken in conjunction with the surrounding circumstances can more likely than not lead you to success in authenticating your evidence. For example, in the context of ESI evidence, the type of postings that a person makes on social media or on the internet in general, the nicknames or names used online, phrases frequently used, and etc., all may be used in conjunction with each other to authenticate under this rule.
5. Negotiating Stipulations with Opposing Counsel for Admission of Evidence
Negotiating and settling evidentiary issues with opposing counsel can be tricky and sometimes extremely difficult, but there are techniques and tactics that can be employed to lead you to successful authentication of your evidence through the use of stipulations in a case. Negotiating stipulations is a way to block and admit evidence before you even step foot in a court room for trial. The evidence can be discussed and negotiated in pre-trial conferences and settlement discussions as well.
Discussions for settlement make it possible for the parties to not have to bring all of their evidence forward to the court in a process that can be highly embarrassing and taxing on parties. Discussing evidence or potential evidence at a pre-trial conference with opposing counsel can assist in the other party’s need or want to settle the case by clearly showing the other side the stakes at risk if they want to proceed to trial.
In conducting negotiations with opposing counsel or other interested parties, it is important to know the stages of negotiation, how to recognize those stages, and what strategies and techniques to employ in those stages to best increase your chance for success.
The first state of negotiating is the preparation stage. There are multiple things going on in this stage, and it is vital to the interests of your client that you do your due diligence in this stage. The first element within the preparation stage is client preparation. In regard to negotiating evidentiary stipulations and client preparation, there isn’t a whole lot to note, other than that it is always important to keep your client’s goals in mind. Does your client have goals that are essential, important, or even just desirable? Keep these goals in mind when negotiating evidentiary stipulations, and what positive or negative repercussions the stipulations could have.
Also, make sure that you have all the factual information that you need before you go in to negotiations with opposing counsel. More information will help you anticipate claims and vulnerable areas of evidence. The facts you are provided with by the client could determine what stipulations you are able to concede, stipulations that you need, and stipulations that would be advantageous.
The other major thing that is going on in this stage is the lawyer’s preparation. The preparation of the attorney hinges on what information is provided to you within the client preparation stages, so again, it is extremely important to do your best to extract all relevant and material information from you client at the outset.
Many attorneys should be familiar with the Best Alternative to a Negotiated Agreement (hereinafter referred to as “BATNA”). Essentially, BATNA represents what you are prepared and willing to do if the negotiation does not produce fruitful or successful merits. This should be kept in mind while negotiating evidentiary stipulations with opposing counsel. It is recommended that you analyze the likely outcome of every conceivable scenario. This could determine the value of a successful negotiation from your client. So when preparing to commence negotiations, know what your bottom line deal is for your client. What are results that they are willing to deal with? Always keep in mind the best interests of your client when planning and conducting negotiations. It is important to stay within the boundaries set by your client. Having a BATNA, and a game plan can lead an attorney to predict which attorney is likely to prevail to a degree of probability and potentially the amount of an award.
Sometimes, there will be times when there is evidence or facts that you did not anticipate. The best thing to do in these scenarios it to either break from the negotiation, and reevaluate your strategy, or continue on with your strategy and try and overcome any challenges the new facts or evidence presented.
The BATNA analysis should be conduct in the context and lens of your opponent as well. The analysis of the facts you have at your disposal can help you paint the bigger picture of the case. Make sure you have employed all the information revealing procedures possible prior to that given time (i.e. interrogatories, requests for admission, depositions, etc.). The big question in analyzing your opponent’s position is what would you be concerned with if you represented the other client.
The next stage of negotiations is the preliminary stage. The important element of this stage is to ensure that you establish a conducive and positive tone for negotiations.
In regards to establishing a conducive tone, it is vital to being successful in dealing with your opponent. A good tone can lead the opposing counsel to respect you more, even after the negotiations. This will be remembered by the opposing counsel and will allow you to be easy and comfortable to work with in future case. Rapport is important is the legal community, and it has large implications on the tone of negotiations. Be mindful of this when engaging with opposing counsel when negotiating or engaging in various other forms of conduct in the ordinary course of business. Part of establishing tone is also knowing what kind of negotiator the opposing counsel is. You should ask your co-workers and peers about your opponent, to try and acquire information that can help you tailor your strategy to maximize results for your client.
The third stage of negotiations is the information stage. There cannot be enough emphasis put on trying to understand the underlying interests of the opposing party. This can aid you in creating value for the opposing party that you can later negotiate with. Once you can identify the interests of opposing counsel, you can tailor your stipulation negotiations around those interests, to try and keep evidence out, or admit evidence accordingly. More importantly, the pie can be expanded by discovering information that can be beneficial for both parties.
One way to acquire such information is to use information seeking questions. In asking these types of questions, you will obtain more information than asking specific questions seeking specific answers. Try to ask broad questions. This will sometimes induce the other party to speak more, and therefore directly or indirectly disclose relevant information. Also, people sometimes assume that the person asking the question knows the general premise of the answer. In thinking such, they will reiterate what they think you know. This can be an effective tactic if employed properly. Many attorneys and negotiators rush through this stage eager to get to the distributive process and as a result, miss important pieces of information. Missing this information could ultimately lead to achievement of a less beneficial outcome.
The last stage of the negotiation process is the distributive stage. For the most productive negotiation session, try and create a win-win situation. Let the opposing side have their little wins that you can afford to concede, and focus on achieving wins in the more conflicted areas of the case. This will maintain the good rapport with opposing counsel, which will likely reflect at later states of the case, and will provide your client with a win.
A key element in the distribution stage, and in allowing your opponent to have their small wins, is to have a concession pattern or plan. If you have a carefully planned concession pattern that rationally explains your concessions, you will often undermine the confidence of less prepared opponents. The timing of these concessions is also vital. If you concede on a point early, you set the tone for more concessions to come in the future. Properly timed concessions can signal a cooperative attitude, as well as present the impression of being tough or bound by certain constraints. Try and use the timing of these concessions to your advantage, and always think of the repercussions.
An important aspect of negotiating is recognizing and sometimes using specific tactics that might be helpful. In some contexts, the scenario calls for power bargaining. Power bargaining is essentially trying to induce the opponents that they have to provide more favorable terms than they actually have to. This forces the opponents to reassess their positions, and will often throw a skilled negotiator off their game. This can be achieved by expressing your strengths as greater than your opponent perceives them, or weaknesses as less vulnerable than perceived. Self-assurance is key to using tactic. The person employing this tactic should always appear to be in control of the negotiation, the agenda, and the conversation. This will allow the attorney to lay the proper foundation to employ power bargaining techniques. Implementation of this tactic will most commonly take the form of legal arguments. Attorneys will normally emphasize factual aspects of the case, potentially applicable legal doctrines, statutes, regulations, judicial decisions, and so on. Often, non-legal arguments prove effective as well, although maybe less so within the context of evidence. These types of persuasive arguments have to be presented with caution. They should appear to be relatively even handed and objective in nature if they are to appeal to the opposing party. Try to provide valid reasoning and objective standards behind your persuasive arguments. Also, present these arguments in a comprehensive format rather than conclusory. This will allow the opposing party to see where you are coming from and more likely than not, they will agree with your rationale.
6. Blocking Evidence
The purpose of effective evidence blocking is to frame the case and the facts in the light most favorable to your client. To block evidence that is detrimental to your client, it is recommended to use contemporaneous and proper objections during cross-examination of a witness by the opposing party. Objections can only be made on certain grounds allowed by jurisdiction but usually state courts will recognize objections to relevance, hearsay, authenticity, and lack of foundation. In order for evidence to be admitted, the previous mentioned elements must be present. For instance, objecting to a witness speaking about a certain event in the plaintiff’s marriage for lack of personal knowledge.
There are essentially four stages or forms of evidence blocking that attorneys should be aware of. These stages or forms include the suppression or discovery violations, witness problems, evidentiary problems, and presentation problems.
It is always advisable to think about potential discovery violations. Attorneys should think about whether the evidence was obtained illegally in an applicable case context. They should also be aware of the exceptions to the illegally obtained evidence. These exceptions include inevitable discovery, independent discovery, standing, good faith, and attenuation.
There are also numerous potential problems with witnesses that could prevent evidence from being admitted. The witness may not actually have personal knowledge to what they are testifying about. The witness could also have applicable privileges available, such as marital privilege, attorney-client privilege, and so on. It is important to make sure the witnesses used to present evidence are vetted for these types of potential issues in order to exclude opponent’s evidence, or in trying to admit yours.
There can also be a multitude of evidentiary problems. Analyze the evidence closely under hearsay rules and the exceptions, relevancy standards, and whether or not the evidence is substantially more prejudicially than it is probative.
Lastly, there could potentially be presentation problems that will most likely always arise out of trial at a moment’s notice. Make sure opposing counsel is laying down the proper foundation for evidence, and if they do not, there is a prime opportunity to block the evidence coming in through a timely and proper objection. Other common objections should be raised under appropriate circumstances, such as leading questions on direct examination of a witness.
There are numerous objections can be made prior to trial to keep evidence out. Evidentiary pre-trial motions are usually filed weeks or at least days before trial in order to allow for planning accordingly. Pre-trial memorandum and conferences are also a good way to preclude evidence before even getting to trial. Sometimes, the pre-trial memorandum is also known as a pre-trial statement. Objections do have to be timely and have a legal basis, but you will encounter a lot of objections that do not have a purpose other than to disrupt opposing counsel in their line of questioning. During trial, most attorneys will listen for buzzwords and make Fed. R. Evid. objections off of that. This tactic will help save them time trying to figure out if what was said or presented fits into an objection before the timely opportunity for an objection has passed.
Important objections to keep in mind during trial, and that most frequent, are hearsay, relevancy, lack of foundation, cumulative, and beyond the scope. When considering relevancy objections, think about whether: (1) it the evidence generally relevant under 401 and 402; and (2) Does Fed. R. Evid. 403 considerations prevent admission? Additionally, special relevancy rules may exclude the offered evidence, such as : (1) do character traits apply under rule 404 or 405; (2) do other acts rules apply under 404 (b); do habit rules apply under rule 406; and lastly, do policy exclusion rules apply under rules 407-412?
Another popular objection is lack of foundation. All exhibits have foundations before they can be properly admitted into evidence. In some cases, it may not be wise to object under lack of foundation because opposing counsel might just be missing an element to establish proper foundation, and raising the objection may just force the opponent to establish said missing element. Conversely, where you absolutely want to keep the exhibit out and there is a substantial likelihood that the proper foundation cannot be established, it is important that you make a timely objection.
Another popular objection is cumulative evidence under Fed. R. Evid. 611. The court has discretion to control this evidence during trials, and can rule on whether it is necessary or whether it is just merely repetitive. If counsel presents one exhibit after another that reinforces what all the others have presented, and there is no additional value, the exhibits are unnecessarily cumulative and therefore objectionable. The most common example of this in the context of exhibits is photographs. In the context of witnesses, the most common example of cumulative evidence is where repudiation evidence is involved.
The last objection that we’ll discuss is beyond the scope under Fed. R. Evid 611. Under Fed. R. Evid. 611(b), cross-examinations should be limited to the subject matter of the direct examination and matters affecting the witness’s credibility. Any time during cross-examination or rebuttal, if the questioning or content is not within the scope of the respective direct or cross, than a timely objection is proper.
There are many additional objections that should be noted in order to keep evidence out. This list is not an exhaustive list, but rather just a highlight
7. Is your Prima Facie Evidence Refutable?
There are multiple grounds for rendering your prima facie evidence refutable. There are numerous procedural and technical defenses to a prima facie case, such as:
- Disability or incapacity of a party;
- Other pending actions;
- Res Judicata;
- Claim preclusion;
- Collateral Estoppel;
- Judicial Estoppel;
- Lack of jurisdiction;
- Failure to qualify as a real party;
- Summary judgments; and
- Default Judgments.
Prima facie evidence is evidence that, until its effect is overcome by other evidence, compels the conclusion that the evidence is true. Prima facie evidence is nothing more than sufficient evidence to submit to the fact finder, and to sustain a favorable judgment. When contradictory evidence is introduced, the prima facie evidence loses effect.
At the point that you have established prima facie evidence, the other party has the burden to refute the presented evidence. A general denial of the evidence is not sufficient to avoid a summary judgment in favor of the presenting party, but rather the other party must offer specific factual evidence creating a genuine issue for the jury.
8. Use of Interrogatories to Authenticate Evidence
Under Fed. R. Civ. P. 33, interrogatories can be used to prove the authenticity of evidence during a trial. Asking a party to identify or authenticate evidence in an interrogatory can be binding upon the other party as authenticate and admissible evidence if relevancy is met. This is similar tactic to requests for admissions or production of discovery materials.
In Biax Corporation v. Nvidia Corp., the party was compelled to provide more complete information in response to an interrogatory for the purposes of authentication.
9. Successfully Using Motions in Limine
There are multiple reasons for utilizing motions in Limine, but we will try to address the use of the motion authentication and admission of evidence, as well as keeping your opponent’s evidence out. There are five main objectives in using a motion in Limine.
The first objective of using the motion in Limine is to isolate the potentially prejudicial evidence from the jury. The idea is to preserve neutrality in a proceeding by preventing any reference or inquiry into materially prejudicial evidence. Attorneys should use creativity and knowledge to anticipate the potential areas of prejudice that the opposing party will attempt to target. The second objective in using the motion in Limine is discovering your opponent’s case. The motion can be used to probe any specific facts that may be important to the opposing party’s case. By making a pre-trial motion on a vulnerable evidentiary area, the attorney can force opposing counsel to disclose what prejudicial evidence they intend to offer, as well as the legal theory they intend to rely on as well. The third objective in using a motion in Limine is to force your opponent to make elections. Because the opportunity to present certain evidence during trial may be foreclosed by a motion in Limine, the opposing attorney is forced to make evaluations and elections regarding the evidence they choose to present and when exactly to present it. Depending on the strength of their entire case, a decision not to resist the motion and not use the prejudicial evidence at trial may spring from a sense of “fair play.” Conversely, the attorney may become so aggressive and insistent about his right to use the prejudicial evidence, that he might commit reversible error at the trial by presenting material that he might otherwise not have offered. Any explanation by the opposing counsel of relevancy of the evidence or the purpose for which it is being offered can be considered a limiting commitment, and any use of that evidence at trial for other purposes will afford the movant an opportunity to argue unfair surprise, to restate his contentions in prejudice, as well as to obtain exclusion of the evidence at that time.
The fourth objective in using motions in Limine is to preserve the record for appeal. Whichever way the court rules, the attorney urging prejudice is in a relatively strong position when he initiates his resistance to the prejudicial matter through a pre-trial motion in Limine. A favorable prohibitive order will indicate that a judge at the trial level concluded that the evidence was so inflammatory that its very mention should be suppressed to ensure a fair trial. Thus, any direct or indirect violation of the order will enable moving counsel to argue more persuasively on appeal that reversible error resulted. Or, if the motion is denied, counsel can argue that the trial was tainted from the start by the green light given by the trial judge to opposing counsel to parade prejudice before the jury.
The last objective in using a motion in Limine is to obtain a favorable outcome or settlement offer. Success in this motion can aid counsel to acquiring more favorable terms than it might have been able to obtain before trial. The plaintiff and defendant in a civil proceeding may find that the outcome of a hearing on a motion in Limine will supply the leverage needed to produce a settlement between the parties. Depending on whether the motion is granted or denied, the parties’ valuation of their respective cases will be affected accordingly.
Now that we have established the objectives in using the motions in Limine, we’ll discuss the types of motions. The first type of the two motions is a prohibitive motion. A pretrial prohibitive form may either be absolute or in a preliminary form. The absolute form prohibits a party from offering and mentioning the offending evidence at trial in any way. It is in fact and in effect, a final ruling of the inadmissibility of potentially prejudicial evidence. The preliminary order prohibits the party from offering or discussing the prejudicial proof in front of the jury at trial unless the matter is first taken up with the court in chambers and the court rules that it is admissible. In contrast to the prohibitive motion, which seeks a judicial declaration that certain evidence expected to be offered by an adversary is inadmissible, the permissive motion is made by the party proposing to offer sensitive evidence and seeking a pre-trial determination that the evidence is admissible under the circumstances of the case. By submitting possibly prejudicial evidence prior to judicial scrutiny through a permissive motion, the attorney who proposed the evidence may avoid committing reversible error at trial. It should be noted that a motion in Limine is not a substitute for a summary judgment motion, nor should it ordinarily be employed to choke off an entire claim or dense.
The motion can also be used to address the excessive quantum of proof. Counsel can often use this motion to force his adversary to scale down the quantity of evidence he intends to offer in proving an element of the case. If the trial judge can be convinced that a large amount of proof would be of limited use in comparison with the amount of trial time it would require, or that undue emphasis may unduly exaggerate the importance of a particular issue, he may grant the motion.
The motion can also be applied to prejudicial documents. The court will often require the parties to a civil proceeding to exchange lists of the documents they propose to offer as evidence at trial. It may also require that any objections to the admissibility of these documents be made by a certain date so that the tentative pre-trial rulings based on the parties’ descriptions of the document might be made. Doing this gives attorneys an opportunity to motion in Limine that certain aspects of the opponent’s document be excluded as prejudicial. Motions of this nature have been granted on several grounds. For example, documented accident investigation reports have been excluded for their opinionated, non-factual, and conclusory nature. Language contained in pretrial orders that exclude documents tends to be quite precise as to the exact effect of the order with respect to the admissibility or inadmissibility of the questioned material. An order in “absolute-prohibitive” form, for example, will often specify that counsel is not to reoffer the excluded documents either in court or in chambers. Likewise, a “preliminary-prohibitive” order will generally particularize the procedure that counsel must use to seek admission of the sensitive documents during the trial. Such preciseness in the wording of a pretrial order prevents any possible claim of misapprehension of the procedural effect or requirements of the court’s ruling.
The motion in Limine is also advantageous to utilize if an attorney doesn’t want a privilege invoked to be alluded to or mentioned at trial. One case demonstrates just this. In Burdick v. York Oil Co., the attorney made numerous and improper references to opposing counsel using privilege to protect information in an effort to prejudice the jury. There was a pre-trial motion prohibiting this, and therefore, reversible error.
Motions in Limine can also be used to address matters that adversely affect the credibility or character of a party. In the context of prior law suits, the motion can be used to prevent mention of those law suits. Attorneys will attempt to create suspicion in the jurors’ minds that the plaintiff has fabricated or exaggerated his claim against the other party, by skillfully disclosing that the plaintiff has on prior occasions filed other lawsuits and claims for injuries. Such prior claims do not have to be relevant to the case, but if presented with sufficient skill, it can mislead the jury to believe that the plaintiff is nothing more than a profession claimant. Use of the motion for this purpose was illustrated in one case involving a claim that sought workmen’s compensation for a totally disabling back injury the plaintiff received while working on the job. In McClintock v. Travelers Ins. Co., there was a pre-trial order issued on a motion in Limine to refrain from any reference at trial to prior law suits initiated by the plaintiff. Despite the pre-trial order, counsel for the defense elicited in testimony before the jury a history of the plaintiff’s minor injuries and claims dating back some thirty-five years. The appellate court held that conduct of this nature must have so prejudiced the jurors that they would have had difficulty rejecting the belief that the plaintiff was a “litigation-prone” individual.
The motion also is important with regards to reference of prior criminal records. According to the traditional rule, a judgment of conviction in a criminal prosecution is not admissible in a civil case as evidence of facts on which the civil case is based. Mention at trial by counsel of an inadmissible conviction might constitute a very powerful tool to influence the juror’s attitudes toward the formerly convicted party. That is why the motion in Limine regarding this matter may attribute to the success of your case.
This list isn’t exhaustive. There are almost a limited amount of contexts to which to use the motion. The key is to remember to identify the vulnerable evidentiary areas and try to use motion in Limine to your advantage.
There are numerous cases that deal with using these motions to authenticate evidence, but there are two I wanted to point out in particular. The first one conveys the general use and meaning of the motion in Limine to authenticate, and the second demonstrates that the motion in Limine may not be relied upon as a final ruling.
The first case is United States v. Scott, where the party used a motion in Limine to authenticate and admit evidence under self-authentication prior to commencing trial. Again, this just demonstrates the general use of the motion. The second case lends a lesson of caution when proceeding to trial after a favorable in Limine ruling. In Leigh v. Schwartz, the defense counsel made a motion in Limine to prevent evidence of past or pending claims against his client. The defense counsel had acquiring a favorable ruling on the matter. Unfortunately for the defense counsel and his client, he later opened the door for evidence of past and pending claims through evidence that he presented himself. Counsel effectively waived the preclusion of any such evidence that he had recently acquired in the motion in Limine. The take-away here is be cautious of evidence that you present and make sure that it does not open the door back up to any evidence that you have had successfully precluded through a motion in Limine.
29A Am. Jur. 2d Evidence § 1053.
United States v. Brooks, 715 F.3d 1069, 1078 (8th Cir. 2013).
O’Toole v. Northrop Grumman Corporation, 499 F. 3d 1218, 1225 (10th Cir. 2007).
Fenner, Michael G., The Admissibility of Web-Based Evidence. 47 Creighton L. Rev. 63 (2013).
Id. See Netscape Commc’ns v. ValueClock, Inc., 707 F. Supp. 2d 640 (E.D. Va. 2010).
33 Am. J. Trial Advoc. 1, 4 (2009).
Craver, Charles B., The Negotiation Process, 27 Am. J. Trial Advoc. 271 (2003).
Craver, Charles B., The Negotiation Process, 27 Am. J. Trial Advoc. 271, 292 (2003).
Rapping, Jonathan, Evidence Blocking: How the Defense Can Define the Legal Landscape at Trial, 33 Am. J. Trial Advoc. 1 (2009).
Mauet, Thomas A., Fundamentals of Trial Techniques, 335-50 (Little, Brown, & Co. et. al. eds., 3rd ed. 1992).
Def. Against a Prima Facie Case §1, §1.1-1.22 (Rev. 2016), available at Westlaw.
Shelson, James W., Mississippi Chancery Practice, § 31:22 (2015 ed.), available at Westlaw.
Carlson, Ronald L., ET AL., Trial Handbook for Georgia Lawyers. § 9:2. (2015 ed.), available at Westlaw.
Presumptions and Facts Established Without Formal Proof, PGEV MA-CLE 2-1 (2015).
Biax Corporation v. Nvidia Corp., 271 F.R.D. 200 (D. Colo. 2010).
20 Am. Jur. Trials 441 (1973).
20 Am. Jur. Trials 441 (1973).
Id. at § 4. (citing Jefferson v. Lyon Sheet Metal Works, 376 S.W.3d 37 (Mo. Ct. App. E.D. 2012), reh’g and/or transfer denied, (June 28, 2012)).
Id. at §17 (citing Parmelee Transp. Co. v. Keeshin, 292 F.2d 794 (7th Cir. 1961)).
20 Am. Jur. Trials 441, §17 (1973), (citing Fid. & Cas. Co. of New York v. Frank, 227 F. Supp. 948 (D. Conn. 1964)).
Id. at §17 (citing Parmelee Transp. Co.).
Id. (citing Burdick v. York Oil Co., 364 S.W.2d 766, 767 (Tex. Civ. App. 1963), writ refused NRE (May 15, 1963)).
Id. (citing McClintock v. Travelers Ins. Co., 393 S.W.2d 421, 422 (Tex. Civ. App. 1965), writ refused NRE (Nov. 10, 1965)).
United States v. Scott, No. 2:13CR164, 2014 WL 2808802, at 3 (E.D. Va. June 20, 2014).
Leigh v. Schwartz, No. CV116018306S, 2016 WL 1315611, at 1 (Conn. Super. Ct. Mar. 7, 2016).