Better Never than Late: The Improper Use of Motions In Limine

Imagine walking into a courtroom, the jury is selected and the trial is about to start. You have been preparing for years for this day, crossing every “t” and dotting every “i.” Just as the jury is about to come out, however, your adversary hands up to the court an eleven-page motion for summary judgment masquerading as a motion in limine.
The issue presented in the motion is in fact the crux of the entire lawsuit from its inception, which was certainly well known to all sides from the commencement of the suit. Yet your adversary waited until after the jury was selected and the trial was about to begin before making the “motion in limine.”

Or instead, your adversary hands up not one motion, but three separate motions in limine immediately before the jury is to enter the courtroom. The first and second motions seek to prevent your expert from testifying at the trial, claiming his testimony is within the expertise of the jury and his expected testimony is allegedly speculative, despite knowing about your expert two years prior to trial. In the third motion, your adversary attempts to preclude your use of a tremendously expensive video animation to be used by your expert as an aid to the jury in understanding his testimony, claiming it will be prejudicial to the jury, although again your adversary knew about the animation two years prior to the commencement of the trial, but failed to make any motion previously with regard to it.

In both hypotheticals, your adversary presented motions in limine not to prevent the introduction of evidence which had just come to their attention, but to preclude evidence that they had known about for years. Can a court accept such a motion, despite it being presented literally on the eve of trial with no prior notice to you?

Last-Minute Motions In Limine
You may be surprised to learn that the court can not only permit submission of such a late motion, but can also require you to read the motion in limine for the first time while simultaneously having to argue against it. You will have no opportunity to review the cases cited in support of the motions, nor research the issues presented and provide a written response, despite the extreme importance of the decision. Indeed, in both hypotheticals, if you are unable to introduce the evidence objected to in the motions in limine, you will be precluded from meeting your burden of proof and will result in the dismissal of both actions.

This trial by ambush is nothing more than an abuse of the purpose behind the motion, which is to “sav[e] the parties and the court from significant litigation time and … significantly streamline the action without compromising either party from proving its case.”1 “In limine” is defined as “at the outset” and “preliminarily.”2 When a motion in limine is made, however, not “at the outset” when a party first becomes aware of an evidentiary issue that will be raised at trial but on the very eve of trial, the results can be catastrophic.

In Shufeldt v. City of New York, the First Department affirmed the lower court’s granting of defendant’s motion in limine, which precluded plaintiffs from asserting theories of liability not asserted in their notice of claim.3 The plaintiff was injured in a car accident in 1982 and served a notice of claim on the City of New York that same year. Ultimately, the plaintiffs’ theory changed after discovery in 2004.4 As a result, in 2005, plaintiffs amended their bill of particulars and changed their legal theory.

The defendant then waited until the eve of trial in 2008 to make its’ in limine motion, arguing that because the 1982 notice of claim did not indicate the new legal theory – now the sole theory of liability – plaintiffs should not be able to assert this theory at trial. The lower court and First Department agreed, granting the motion in limine and dismissing the complaint. As a result, despite legal fees that expanded over 25 years, and despite being well aware of this issue as early as 2005, the defendant waited until the eve of trial to make a motion that resulted in dismissal of the complaint.

If an attorney is aware of an evidentiary issue well before the trial begins, they should not be permitted to wait until the day of the trial to bring a motion in limine. Because motions in limine do not have to be in writing or in accordance with CPLR § 2214,5 nor are there state-wide rules or regulations restricting the timing of such motions, this is exactly what is happening. When it happens, the opposing attorney may have mere minutes to respond to a fully briefed motion which could lead to the dismissal of their case.

There is nothing in the CPLR or Uniform Rules that expressly authorizes motions in limine. In fact, as late as 1966 it appears that courts refused to entertain a motion in limine in New York State courts.6 Rather, this court-created motion appears to have its genesis in the Supreme Court case Luce v. United States,7 where the Supreme Court recognized that motions in limine were “developed pursuant to the district court’s inherent authority to manage the course of trials.”8

Judicial Reactions
New York courts have continued to allow these motions, holding that “[d]eciding [a motion in limine] is completely within the court’s inherent power [to regulate trials before it].”9 CPLR § 4011 also permits courts to “regulate the conduct of the trial,” and thus the ability to decide such motions. More recently, courts are appearing to recognize the prejudice that a late motion in limine can have. The Honorable James V. Brands of the Dutchess County Supreme Court has a particularly expansive and equitable rule, that any motion in limine “addressing the preclusion of evidence, testimony or other trial related matters shall be brought to the attention of the court immediately upon counsel becoming aware of such matter to be addressed, it being the intent to avoid applications made on the eve of, or during trial of a matter.”10 This rule restricts a practitioner’s ability to ambush the other side with a long known evidentiary issue that could have been addressed far in advance of trial.

Moreover, recent cases seem to emphasize the importance of bringing a motion in limine early. In Drago v. Tishman Const. Corp. of New York,11 the Honorable Diane A. Leberdeff recognized that “there is an evolving preference for early presentation” of a motion in limine related to the admissibility of testimony about scientific data or opinion.12

In People v. Min the court was not presented with a motion in limine, but with a motion “filed moments before the People’s opening address.”13 The court recognized that “[t]his motion is based upon facts of record fully known or knowable to the defendant well before trial” and that “Defendant could have filed the motion well in advance of trial.”14 As a result of the timing and prior knowledge, the court denied the motion, recognizing its prejudicial effect on the eve of trial. Motions in limine should be treated the same.

Solutions
The Rules of the Commercial Division of the Supreme Court currently provide a solution to this problem:
The parties shall make all motions in limine no later than ten days prior to the scheduled pre-trial conference date, and the motions shall be returnable on the date of the pre-trial conference, unless otherwise directed by the court.15

Although this would certainly allow all counsel to be on notice of such a motion and permit sufficient time for counsel to oppose such a motion, these rules are currently applicable only to the branches of the Commercial Division located in Albany, Erie, Kings, Monroe, Nassau, New York, Onondaga, Queens, Suffolk and Westchester counties. As such, the entire Unified Court System would need to accept such a rule in order for it to have an impact on all cases tried in New York State.

Alternatively, the time for making a motion in limine should be set forth in the preliminary conference order, just as it is for a motion for summary judgment. The importance in restricting when such motions can be made has been highlighted by the Court of Appeals in Brill v. City of New York:
In practice … the absence of an outside time limit for filing such motions became problematic, particularly when they were made on the eve of trial. Eleventh-hour summary judgment motions, sometimes used as a dilatory tactic, left inadequate time for reply or proper court consideration, and prejudiced litigants who had already devoted substantial resources to readying themselves for trial. 16

Thus, because of the unfair tactics used in summary judgment motions, the Court of Appeals recognized the need by the legislature “to ameliorate the problem by amend[ing] CPLR § 3212(a)” to provide for an outside time restriction on when a litigant must make a summary judgment motion, while allowing the litigant to show good cause in order to extend that time limit when needed.17

Here, the courts should similarly set a date in the preliminary conference order for when a motion in limine must be made. Doing so will eliminate the prejudice faced by “litigants who had already devoted substantial resources to readying themselves for trial.”18 Moreover, there can still be a “good cause” exception if there is a “satisfactory explanation for the untimeliness.”19 Absent such statutory authorization, parties will continue to be unfairly confronted with late motions in limine that can end their lawsuit without giving them the opportunity to properly address the issues raised.

Mr. Schwartz and Ms. Gatto are attorneys with Forchelli, Curto, Deegan, Schwartz, Mineo, Cohn & Terrana, LLP of Uniondale and are members of its litigation group, concentrating on state and federal commercial litigation.

1. MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 2010 NY Slip Op. 52239(U), 2010 WL 5186702, at *6 (Sup. Ct., N.Y. Co. Dec. 22, 2010) (citation omitted). See also William H. Voth, Structuring Complex Cases: From Motions in Limine to Issue-specific Trials, Defined Procedures Lead to Efficient Resolution, 6/16/2008 N.Y.L.J. S2, (col. 2).
2. Black’s Law Dictionary 351 (2001).
3. 67 A.D.3d 429 (1st Dept. 2009).
4. Id. at 430.
5. See Wilkinson v. British Airways, 292 A.D.2d 263 (1st Dept. 2002).
6. See Guilder v. Town of Fallsburgh, 25 A.D.2d 338 (3d Dept. 1966).
7. 469 U.S. 38 (1984).
8. Id. at 41 n.4.
9. MBIA, supra n.1 (citing CPLR 4011). See also Davis v. City of Stamford, 3:95 CV 2518 (JGM), 1998 WL 849369, at *1 (D. Conn. Nov. 16, 1998), aff’d 216 F.3d 1071 (2d Cir. 2000); People v. Michael M., 162 Misc.2d 803, 806, (Sup. Ct., Kings Co. 1994).
10. Justice Brand’s Part Rules are available at http://www.nycourts.gov/courts/9jd/dutchess/judgesrules.shtml.
11. 4 Misc.3d 354 (Sup. Ct. 2004).
12. Id. at 361 (citations omitted).
13. 2011 NY Slip Op. 50477(U), 2011 WL 1136489, *1 (Crim. Ct., N.Y.C. Mar. 29, 2011).
14. Id. at *2.
15. 22 NYCRR 202.70, Rule 27.
16. 2 N.Y.3d 648, 651 (2004)(citations omitted).
17. Id.
18. Id. at 651.
19. Id. at 652.