Limine Motions – Their Uses And Limitations

July 9, 2011

I can’t think about that right now.  If I do, I’ll go crazy.  I’ll think about that tomorrow.
- Scarlett O’Hara

Limine motions use a Scarlett O’Hara approach to evidentiary problem-solving  –  at best, the most they accomplish is putting off the ultimate decision for another day.  No matter whether a limine motion is granted or denied, no final ruling has been made on the admissibility of any evidence whatsoever.  A limine order simply establishes the ground rules by which an offer of evidence can later be made.  Because of this, no limine ruling will ever be considered error or grounds for reversal on appeal.  Understanding this concept is a key component to learning how to most effectively use this evidentiary tool.

It is also important to understand the two basic ground rules which a limine order puts into play.  They are simply this:  If the limine motion is granted, the proponent of evidence must first approach the bench for a ruling outside the jury’s presence before referring to the matter in front of the jury.  If the limine motion is denied, the proponent of the evidence may offer that particular evidence at trial just like any other piece of evidence.

Keeping these broad concepts in mind, when making or responding to a limine motion, here are the basic guidelines:

  • Rules:  Limine motions are creatures of common law.  Because in Texas there are no procedural rules which govern their use, attornneys should generally look to case law for guidance on substantive issues concerning limine rulings, and look to local rules for guidance on deadlines and other procedural aspects of getting them filed and heard.
  • Purpose:   Motions in limine are best used for situations involving inflammatory or highly prejudicial facts of questionable admissibility.  It is an exceptionally good method of identifying in advance evidentiary situations which invoke Rule 404 of the Texas Rules of Evidence – evidence, which although relevant, may be excluded because its probative value is outweighed by the risk of unfair prejudice.  A limine order keeps the skunk out of the jury box until the court has made a TRE 404 determination on whether the evidence can come in.  Because this is the essential purpose of the rule, many judges are disinclined to waste time considering limine requests on more mundane matters, absent an agreement between the parties which can be enforced without argument on the point.
  • Preserving Error:  Never rely on a limine ruling to preserve error — it doesn’t.  If the judge denies a motion in limine, then the objecting party must act just as though the limine motion were never filed at all.  At the time the objectionable evidence is offered, a timely, specific objection must be made and a ruling must be obtained thereon.  If the judge grants the motion, the proponent of the evidence must approach the bench outside the hearing and presence of the jury, make an offer of the evidence and get a ruling on the offer.  Oftentimes these offers are made during a bench conference or during a break when the court reporter is not recording the proceedings.  No error is preserved if no record is made of the offer and ruling.  It is also important to remember that error is not preserved unless this offer is made before the jury is charged (even if the parties agree otherwise).  
  • Violations:  The appropriate remedy for a limine violation is contempt of court, which is punishable by up to a $500 fine, a 6-month imprisonment, or both.   Because contempt (of court order) is the appropriate remedy for a limine violation, it is important to have a limine order actually entered.  Therefore, a prudent attorney will provide the judge with an order to sign immediately after the court rules on the limine motion.  Without a written order, contempt may not be available as a remedy.  However, a judge may also grant a mistrial in response to a limine order violation. 
  • Persuading the Court to Grant the Motion:  Given the fact that many courts don’t allocate much time to hear limine arguments, don’t bury an important limine issue among voluminous boilerplate requests.  Pick the most important issues and focus on them.  Don’t wait until the last minute to file the limine motion.  Absent a local rule governing their use, limine motions may be filed at any time, even after a trial has commenced.  But waiting that late is not advisable.  If a limine motion is important enough to file, then it’s important enough to be filed early and heard well in advance of voir dire.  This is especially important if the admissibility issue is unique or complex.  The chances of having a limine motion granted increase if the judge has had ample time to consider the issue, arguments and perhaps briefing.  Finally, since many limine issues cut both ways, obtaining agreement from opposing counsel on limine issues which are clearly appropriate and mutually beneficial is the easiest way to ensure that your motion is granted. 
  • Persuading the Court to Deny a Motion:  Most judges frown on conducting jury trials in piecemeal or disjointed fashion.  If an opponent’s limine motion would require frequent bench conferences outside the jury’s presence on non-inflammatory issues, an attorney may argue that this would impair the effective and efficient presentation of evidence in the case.  So, if the matters raised in the limine motion aren’t potentially prejudicial or inflammatory (such as an attempt to call a non-disclosed witness), then it may be argued that these matters are the type which would best be ruled upon in the ordinary course of trial.
  • When Not to File:  In a bench trial, for obvious reasons, although, believe it or not, I’ve actually seen that attempted a few times.

– Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas


Prior Bad Acts – What Happens in Vegas May Have to Stay in Vegas

June 20, 2011

We all know that the Texas Rules of Evidence (TRE 404) generally prohibit us from using evidence of prior bad acts to show that our opponent acted in conformity therewith.  So what do you do when your investigation turns up the 500-pound skeleton in your opponent’s closet?  Look to the exceptions.

Rule 404 itself provides the first exception.  When offered for another purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, prior bad acts may be admissible. For example, while prior fires of suspicious origin would be generally inadmissible to prove arson in a particular case, they may be used to prove plan, scheme or design.  Payne v. Hartford Fire Ins. Co., 409 S.W.2d 591 (Tex.Civ.App. 1966) (Each of the previous fires destroying plaintiff’s houses occurred in the early morning, when no one was home, after personal effects of substantial value had been removed from the house, at a time when the plaintiff was in dire financial circumstances, and resulted in the collection of substantial money under fire insurance policies.)

If the exceptions in Rule 404 don’t apply, Rule 406 provides another exception for habit or routine:

Evidence of the habit of a person or of the routine practice of an organization … is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. 

When prior bad acts rise to the level of habitual behavior, then these bad acts will be admissible to show action in conformity therewith.  This is because the law recognizes that a person is far more likely to act in conformity with established habit than to act in conformity with a perceived general character or disposition.  Isolated instances of bad conduct, however, will not invoke the Rule 406 exception.  Rule 406 applies only to highly repetitious conduct, along the lines of smoking cigarettes or reading the morning newspaper.  

Another significant exception to the rule comes into play with regard to punitive damages.  While prior bad conduct is generally not admissible to prove liability for an underlying tort, a jury is often allowed to consider prior bad acts at the punitive damage stage of trial.  For example, while evidence that a defendant regularly smoked marijuana while driving a car could not be used to prove negligent driving, it would be relevant to the determination of punitive damages for negligent driving.  Castro v. Sebesta, 808 S.W.2d 189, 193 (Tex. App. — Houston [1st Dist.] 1991).   

In the landmark decision of BMW of North America, Inc. v. Gore, the U.S. Supreme Court instructs that not only can prior bad acts be used as evidence within the punitive damage context, they should be admissible in assessing the degree of culpability of conduct at that point. 517 U.S. 559 (1996).  According to BMW, one of the factors which should be considered in determining the reasonableness of a punitive damage award is whether the conduct was an isolated incident or whether the conduct involved repeated bad behavior. Later, however, the Supreme Court took a second look at the use of this evidence, specifically in the context of out-of-state bad conduct, and limited the use of prior bad acts in two fairly significant ways.  State Farm Mutual Automobile Insurance Co. v Campbell, 538 U.S. 408 (2003). 

First, not just any bad acts will do.  Although prior transgressions need not be identical to the act being adjudicated, the prior act occurring out of state must “replicate” the conduct in question in order to be admissible at trial.      

Second, while bad acts occurring out of state may be probative as to deliberateness and culpability, if the conduct was lawful in the state where it occurred, the amount of punitive damages assessed cannot be based upon those lawful, out-of-state bad acts.  Declaring that states do not have a legitimate concern in imposing punitive damages to punish a defendant for acts committed in other jurisdictions, the Court held that an exemplary damage award cannot be based on conduct which is lawful in the state where it occurred, no matter how similar, no matter how bad.

In order to reconcile the two Supreme Court decisions – BMW and State Farm – it appears that while a jury may consider evidence of bad-yet-lawful out-of-state conduct in evaluating the egregious nature of a tortfeasor’s conduct during the exemplary damages phase of trial, the jury may not consider that same evidence to punish the tortfeasor (by way of assessment of exemplary damages) during that same phase of trial.  In other words, the jury may use the evidence to determine whether the conduct was really, really, bad, but when deciding how much money to assess for the really, really, bad conduct, the jury must disregard all of the bad-yet-lawful out-of-state conduct it heard and consider only in-state bad conduct and bad-and-unlawful out-of-state conduct in arriving at a proper amount to award in punitive damages.  

Confusing?  Let’s just hope that 500-pound skeleton you found is wearing cowboy boots firmly planted in the Lone Star State.  Otherwise, what happened in Vegas may have to stay in Vegas.

–Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas


The Non-Responsive Objection

June 14, 2011

One of the most common trial objections is “Objection, non-responsive,” an objection which is often followed up by a motion to strike or to instruct the jury to disregard.  Yet, conspicuously absent from the Texas Rules of Evidence is any rule providing that non-responsive answers are inadmissible or subject to exclusion. 

The fact is, many non-responsive answers may be properly received into evidence, and when a court declines to exclude or strike a non-responsive answer, oftentimes no error is committed.  Because there is no wholesale bar to admissibility of non-responsive answers, one must look to other rules for guidance to determine admissibility in specific circumstances.

Texas Evidence Rule 402 provides that relevant evidence is generally admissible.  Rule 103(a)(1) provides that if the ground for objection is not apparent from the context, an attorney has the duty to enlighten the court as to why it is inadmissible.  Reading the two rules together suggests that a court may allow non-responsive testimony into evidence if it is relevant and no other objection is lodged or apparent from the context.  However, TRE 611(a) confers authority to the court to exclude that evidence as well:

“The court shall exercise reasonable control over the mode and order of interrogating a witness and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.”

Provided the court’s exercise of control is “reasonable,” in the quest for truth, efficiency and fairness, whether to admit or exclude non-responsive answers is left to the discretion of the trial court when no other ground of objection is lodged or apparent from the context.

In practical terms, when an attorney makes a “non-responsive” objection to evidence which otherwise appears to be admissible, the trial court has several permissible options.  If an answer is completely non-responsive to the question posed, then a judge is very likely to sustain the objection.  After all, attorneys are entitled to receive answers to questions properly propounded. 

However, the outcome becomes less predictable if, after responding to the question, the testimony takes a non-responsive turn.  In that situation, a judge might sustain a non-responsive objection on the basis that the additional testimony is repetitious.  An objection might also be sustained to avoid a rabbit trail which the judge believes would result in ineffective presentation of the evidence.  But a judge might also overrule the objection, especially if the testimony, albeit non-responsive, serves to clarify, explain or provide further details about the responsive portion of the answer in an effective and efficient manner.  Finally, there is nothing to prevent a judge from applying a very rigid approach, requiring strict adherence to responsive answers in Q & A form at all times, sustaining all valid non-responsive objections raised.  All of these approaches are well within the discretion of the trial court.

For that reason, a trial attorney should not rely on a “non-responsive” objection, especially when considering the preservation of error.  Instead, attorneys should focus on whether non-responsive answers are objectionable on other grounds.  Assuming other grounds exist to exclude the evidence, then the trial court’s discretion to admit or exclude the non-responsive answer can be substantially limited by combining another valid objection with the non-responsive objection. 

If a non-responsive answer contains hearsay, for example, then a hearsay objection should be included, e.g., “Objection — non-responsive, hearsay,” or simply “Objection — hearsay.”  Either objection will apprise the court of the true reason why the answer should not be admitted into evidence, i.e., that it is objectionable hearsay.  By so doing, the court’s attention is focused toward a particular rule which would require, as opposed to simply permit, exclusion under the circumstances. 

What does this mean for trial testimony?  There is nothing inappropriate about making a non-responsive objection.  It’s a great objection when an attorney wants the court to rein in a witness who is either evading questions or simply won’t shut up.  But the court is not bound to do so.  If the real problem is what is being said, as opposed to when it is being said, then the objection needs to identify that ground of objection, e.g., “Objection — irrelevant,”  “Objection — hearsay,” “Objection — best evidence,” etc.  By so doing, the court is forced to make an evidentiary ruling which carries with it far less discretion on review.

What does this mean for deposition testimony?  Ironically, the only objection permitted to deposition answers under Texas Rules of Civil Procedure 199.5(3)(e) is “Objection, non-responsive.”  Nonetheless, since non-responsive deposition answers, if otherwise admissible, may be received into evidence, an attorney cannot rely on the “non-responsive” objection alone as a basis for exclusion of the testimony at the time of trial.  At the time of challenge to the admissibility of deposition testimony for use at trial, the attorney should focus on the substantive objection.  As with live testimony, such an objection will serve to both apprise the court as to why the evidence needs to be excluded and preserve error for later review.

- Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas


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