Module 10 - Civil Procedure 3 (Section 4)

MOTIONS IN LIMINE

A motion in limine seeks to preclude the mention or display of inadmissible and/or prejudicial matter in the presence of the jury. Motions in limine are usually written but can be made orally and are usually made before jury selection.

MOTION IN LIMINE - REQUIREMENTS

A motion in limine shall include A clear identification of the specific matter alleged to be inadmissible and sought to be excluded A representation that the subject has been discussed w/ opposing counsel A statement of the specific prejudice that will be suffered. LASC Rule 8.92

MOTION FOR DIRECTED VERDICT

In jury trial, once plaintiff rests, defense may test the sufficiency of the plaintiff's case on oral or written motion for directed verdict Motion concedes truth of facts, but contends that facts are insufficient Decision is made by judge not jury CCP § 630

MOTION FOR DIRECTED VERDICT, cont.

In jury trial, the motion may be made by either party after all the evidence has been presented by the parties Judge must determine whether to permit the jury to decide the case Motion disfavored CCP §630

MOTION FOR NONSUIT

In non-jury trial, defendant may move for nonsuit after the plaintiff's opening statement In jury trial, defendant may move for nonsuit after the plaintiff's opening statement or after the plaintiff presents evidence - DISFAVORED Motion almost always oral To grant motion, Judge must conclude: All evidence asserted is true Give facts value to which entitled Indulge every legitimate inference Evidence fails to establish essential element of cause of action CCP § 581c.

EXAMPLES OF MOTIONS IN LIMINE

In personal injury case, defendant will ask the judge to exclude any evidence of the fact that defendant is insured In breach of contract case, plaintiff will ask the judge to exclude any evidence of the fact that plaintiff is a "wealthy corporation" In fraud action, defendant will ask the judge to exclude evidence of a prior criminal conviction not relating to credibility, e.g. Felony DUI.

MOTION FOR JUDGMENT

Made in non jury trial after plaintiff's opening statement Motion for nonsuit after presentation of evidence in a non jury trial is deemed to be a motion for judgment CCP § 631.8

MOTIONS IN LIMINE 2

Motions are in writing and filed 21 court days before the FSC, plus 5 for mailing Oral motions in limine may be made at any time during trial Opposition may be in writing or oral Motions are argued before the Judge outside of the Jury's presence. If testimony is needed or display of exhibits is required, it is done outside of the Jury's presence pursuant to Ev. Code §402. 2

MOTIONS IN LIMINE 3

Must be accompanied by a declaration that includes: a clear identification of the specific matter to be excluded a representation that counsel has met & conferred A statement of the specific prejudice that will result if the motion is not granted LASC Rule 8.92 (a)(1) - (4)

TRIAL CONTINUANCE - DEADLINES

The deadlines triggered by the initial trial date, e.g. discovery cutoff, expert designation, are not continued based upon the new trial date unless the court so orders. CCP §2024.020(b).

MOTIONS TO CONTINUE TRIAL

Trial dates are firm, a continuance may only be obtained by motion or ex parte application: Showing of good cause is required, e.g.: Unavailability of attorney, party, or witness due to death, illness or other circumstance Substitution of counsel Addition of new party Excused inability to obtain evidence Significant unanticipated change in status CRC Rule 3.1332(c).

Rulings on Motions in Limine

When judge has granted a motion in limine, counsel must not reference in voir dire, opening statement, questioning of witnesses or closing argument, the excluded evidence Counsel must instruct all witnesses not to mention the excluded evidence Inadvertent disclosure of excluded evidence by counsel or witness may result in mistrial, e.g. can't "unring the bell".