I’ve written before about the wisdom, in the context of a jury trial, of obtaining pretrial orders by the judge excluding or significantly limiting certain items of evidence you anticipate will be offered by your opponent. The typical vehicle for obtaining this relief in American courts is by filing a motion in limine. This term is derived from Latin, and means “at the threshold.”

Why do courts entertain such motions? If one party attempts to introduce objectionable evidence, whether by an examination question or offering an exhibit, in front of the jury, it may be impossible to “unring the bell,” or make the event 100% harmless, for two reasons.

First, if the question or exhibit is damaging enough that the jury gets the gist of its import before the judge  sustains your objection, the practical effect is little different than if the evidence had come in without objection. (Worse, in some ways, if you recognize that the objection itself may “wake up” jurors and alert them that what they’re about to hear–or not hear–is important.)

The second, more subtle reason, which I’ve previously described, is the assumption on the part of jurors whenever they hear you object, particularly if it is sustained, that you are trying to hide something from them–probably the truth. As I’ve said, this can garner juror resentment.

Motions in limine are great fun to write if you are an associate. I say this only partly in jest because they actually can be both interesting and game-changing, if done well. Plus they help young lawyers learn to use and argue the rules of evidence in a way you never learn them in law school or when studying for the bar.

Now, if we take this kind of pretrial strategic thinking to a higher level, there are even more subtle considerations to consider and decisions to decide. One involves comparing a motion in limine with a different kind of document called a trial brief. A trial brief is often a concise memorandum of points and authorities that delineate an important narrow issue and identify and apply authorities to persuade (under the guise of education) the court to adopt your favored position. It is also common for parties to file a single trial brief, which provides the court with a roadmap of all of the issues, the expected evidence, and how they should be decided. I’m referring in this post to the kind of brief that addresses only a discrete issue or cluster of issues.

In general, motions in limine focus on evidentiary issues and trial briefs on issues of law, such as how the jury should ultimately be instructed. But the difference isn’t always clear. For example, if you expect a massive argument over a specific jury instruction, it might be appropriate to separately file a trial brief to persuade the judge that only your instruction is appropriate. But this debate can also give rise to evidentiary issues. If certain areas of inquiry would be irrelevant or inappropriate if the judge ultimately sides with the position in your trial brief, it may be wise to also file a motion in limine to urge the court to limit potential unwanted or damaging evidence.

Finally, the timing of trial briefs is another consideration. They can be filed before trial, along with any motions in limine, or you can prepare and hold–do not file–a “pocket” brief  until the issue is “ripe” for adjudication. When, in the context of an argument, the judge asks, “Counsel, do you have any authority on that?” “As a matter of fact,” you say, “we do!”

Three additional points about motions in limine. First, lawyers have greatly overused them; some judges consider such motions to be an irritant. Be wary of this and save them for issues that really merit advance consideration by the judge. Then brief these issues well–don’t just assume because you raise an issue and cite an evidence code section that you’ll prevail. It’s vastly better to select a very few key evidence issues and brief each thoroughly, than to file a motion on every anticipated shard of evidence. If the issue doesn’t merit serious briefing, it probably doesn’t merit a motion.

Second, it is an absolute waste of everybody’s time to file “obvious” motions, which simply repeat well-established evidence rules. For example, most trial judges and lawyers know about the prohibition of evidence of insurance coverage. Why waste paper and time making a motion on such an obvious point.

Third, most jurisdictions require parties to “meet and confer” before filing motions in limine to see if the issue can be resolved among the lawyers. Even if you are in a jurisdiction that does not have such a rule, there is no reason not to meet and confer and try to resolve the issue before you spend your client’s money needlessly.

Both motions in limine and trial briefs can significantly impact the outcome of a trial. By resolving evidentiary issues that the jury never needs to know about, or educating the judge about how she should rule on important legal issues, these documents can effectively shape how a case is tried. Don’t be afraid to use these tools, but use them wisely and strategically.

One of the earliest motions I learned to write while working as a law clerk was a motion in limine. Perhaps because of the brevity and intentionally narrow scope of these motions, the job of preparing and opposing them seems to regularly fall on young associates.

(For the benefit of readers who are unfamiliar, a motion in limine is a document which asks the court to rule on the admissibility of an item of evidence in advance of, trial and outside the presence of, the jury. One example might be a motion in limine asking the judge in an automotive product liability case to issue an order evidence that a driver was intoxicated on the grounds that the driver’s intoxication is not relevant to whether there was a defect in the vehicle that caused injury.)

The relegation of these motions to clerks or younger lawyers suggests to me that lead trial lawyers believe such motions are simple, should be straightforward or have only a minor impact on the trial. I want to argue this thinking is as mistaken as the assumption that a novelist’s craft is more complex than that of a short story writer.

Even if trial lawyers don’t see it this way (at least at first), I’ve heard many judges confirm the notion that prevailing in most trials comes down to one or two issues, or facts, or items of evidence. We’re often stuck with our good or bad facts. But to the extent one side can identify those one or two issues or facts, and devote resources to capitalizing or eliminating them from the jury’s “universe,” this can strongly impact the outcome.

Consider a couple of examples, starting with the intoxicated driver above. The defendant will want to apportion fault to a driver for causing a crash to occur in the first place. That one of the drivers was drunk makes this much easier (even if the forensic evidence suggests the driver did not cause the crash, the jury will automatically assume he did regardless of the evidence). The plaintiff, then, might want to move to exclude this evidence on relevance grounds (and potentially because it could distract the jury from the product manufacturer’s alleged fault). Success on this motion could be a game-changer for the outcome of the trial.

Another example. What if the defendant in a sexual harassment case had a history of prior complaints against him with the same employer by other women. The plaintiff will obviously view such evidence as crucial to winning her case. However, if the defendant employer, through a well-crafted motion in limine was able to keep the prior complaints out of evidence because they were factually dissimilar from the plaintiff’s complaint, this could literally “gut” the plaintiff’s case against both the alleged harasser and the employer (who could be held liable for continuing to employ the harasser following the prior complaints).

I hold the view that many lawyers do not effectively use motions in limine. They are often superficial, or thrown together and filed as an after-thought. They often file too many, diluting the importance of any individual motion in the eyes of the court. So I offer the following thoughts on how to more effectively seek (or oppose) pretrial evidentiary rulings.

Think of A Motion in Limine As A Knight, Not A Pawn. My biggest beef with the way most lawyers–on both sides of the table–use pretrial motions is the sheer volume of motions they file. In a not especially complex wrongful death case, I once had to oppose 29 separate motions in limine. And these came from the plaintiff’s firm. A really good plaintiff’s firm.

What’s wrong with too many in limine motions? The biggest problem is the burden on the court, the judge and her clerks. We all know the lawyers have to work day, night and weekends preparing for trial, but do you really want to be the one unnecessarily causing the judge and court staff to be pulling all-nighters? I don’t.

A subtly related reason not to over-file pretrial motions is that the judge and her clerks will quickly realize you’re unfocused and may (correctly?) conclude you don’t know what you’re doing. At the very least, after reading 3 or 4 frivolous in limine motions, there’s a good chance the court will give your arguments in all of the remaining motions short shrift.

Avoid the trap of viewing motions in limine as Pawns on the chess board of trial; see them instead as the Knights. This piece is the surgical bad-ass who silently eviscerates your opponent’s key pieces. In other words, leave out the true no-brainer motions, like excluding  reference to insurance or settlement discussions. Look instead for opportunities to creatively shape the evidence that gets in front of the jury.

Don’t Just Crank Them Out. A major upside of being selective about pretrial motions and leaving out the kitchen sink is that it frees you, your associate and/or clerk up to prepare a real motion. You know, with citations to authorities, and even excerpts of deposition transcripts that support your position. It also frees up the judge and her staff to read and take seriously just a few well-written, properly supported arguments. They won’t be so pissed off with having to read 14 separate motions (just from one party) that they deny or put off considering the issues until they come up during the trial (which is exactly what they will do–trust me).

Meet and Confer. Regardless whether the rules of court or standing order require it, you should meet and confer, preferably in writing, before filing any motions. And be sincere in this effort, even if you believe it will be fruitless. As recently as three weeks ago my opposing counsel, in a case in which we were electronically filing documents, sent me an email inviting me to meet and confer on his anticipated pretrial motions. The problem was he sent this email quite literally 8 minutes before his office began the process of electronically filing 17 different motions in limine. It’s like a waitress who sets down a plate of bacon and eggs and asks what you’d like to order for breakfast. Don’t think I didn’t highlight this to the court. (I mean the weak meet and confer effort, not the bacon and eggs analogy.)

It Shouldn’t Be A Last Minute Exercise. I think about evidence exclusion from day one, and particularly during depositions. If I hear something in a deposition that I know I’m ultimately not going to want the jury to hear, I’ll make a note of it and go back and consult these notes when it comes time to think about pretrial evidence exclusion. While I had been, up until recently, an enemy of the dreaded deposition summary, I’ve come around and believe that preliminary thoughts about how to exclude a problem witness or keep out harmful testimony should be included in my new-and-improved deposition summary.

Again, well-planned and well-crafted motions in limine can be game-changing if they win. Hopefully, these suggestions will improve your chances of success.