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Motion in Limine: An Effective Pretrial Tool and Weapon (Part 3)

A “red herring” is normally used by people to divert the attention of others from something important; from the central point that is being considered. A “herring” is a kind of fish that turns red only when it is “cured” – that is, when it is smoked and salted. Such a fish emits a very strong smell and in the past criminals made use of red herrings to help them in their bid to escape the authorities. Convicts used the herring to help them throw dogs off his scent. Since the herring had a very strong smell, the police dogs followed the scent of the herring rather than that of the escaped convict! The original expression was “drag a red herring across the trail”, but now it’s been reduced to “red herring”. Below are more “red-herrings” to consider in filing a motion in limine:

        Motor Vehicle Citations.

Any mention that a party was not arrested, cited, ticketed, or charged with a crime misdemeanor, traffic violation, or traffic infraction is normally hearsay and is the out of court opinion of a non-party on the ultimate issue.  Such opinions arguably invade the province of the jury and may also violate the provision against providing opinions as to the ultimate issue under Rule of Evidence 704. Any attempt to tell the jury that a party was not “cited” by the investigating officer would be self-serving, prejudicial and misleading to the jury. See Rules of Evidence 402 and 403.

       Lawyer Created Case.

The defense may argue or insinuate that this is a lawyer created case. All cases which are filed are necessarily lawyer created which is both proper and constitutionally protected by both state and federal constitutional law guaranteeing a remedy and due process. If you are representing a client you should be  concerned that defense counsel may show to the jury in words or substance that plaintiffs’ lawyer has created the case or artificially  increased the medical expenses.  Any references made to this effect should not be permitted as they are calculated to mislead and confuse the jury and would clearly be immaterial and irrelevant to any issue in this cause.  See Rules of Evidence 402 and 403.

       Collateral Source Benefits.

The fact that the plaintiffs have received in the past, or may be entitled to receive in the future, benefits of any kind or character from a collateral source including, but not necessarily limited to, such collateral source benefits such as Workmen’s Compensation benefits, governmental benefits such as Social Security, or Veteran’s benefits, Medicare, Medicaid, or health insurance benefits.    Also, the fact that a plaintiff may have been paid for work missed is collateral source.   If your statutory or case law allows this type of motion, then you should consider filing it.

       Verdict Not Subject to Tax.

The fact that any recovery of a plaintiff for bodily injuries is not subject to any State or Federal income tax is normally not admissible.  Such information would only serve to confuse, mislead, and prejudice the jury.  This limitation is either supported by case law or statute or is found in the pattern jury instructions of your jurisdiction.  See also Rules of Evidence 402 and 403.

       Rising Insurance Rates or Inflation in General.

Mention of rising insurance rates or of inflation in general would clearly be immaterial and irrelevant to any issue in this cause and would only be introduced in trying to prejudice the plaintiff or reduce the amount of any judgment for plaintiff.  This is a classic appeal to prejudice of the jurors to serve their own self-interests in lower insurance premiums and is clearly inadmissible under Rules of Evidence  403 and 403.

       Poverty of the Defendant.

Any suggestion by defendant, his counsel or witnesses, that a judgment or verdict in this matter would have to be paid by the defendant our of his own assets, including comments about his lack of capital or assets, cannot be set up by the defendant in mitigation of damages suffered by plaintiffs and, is inadmissible except in cases where wealth may be a relevant consideration such as in claims for punitive damages or for bad faith.  If this does happen, the defense may be opening the door to evidence of insurance coverage.

       Other Claims and Litigation by Client.

This is a common red-herring.  Any other claims and litigation by a plaintiff should not be permitted to be introduced, because they are irrelevant and such attempt would be calculated to mislead and confuse the jury and work to the extreme prejudice of the plaintiffs. See Rules of Evidence 402 and 403.

Additional areas will be discussed in my next post.
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