A motion in limine (a Latin phrase translated as “on the threshold” or “at the very beginning”) is a device used to establish whether certain evidence may be introduced at trial, and to establish the “ground rules” to be used at trial.160 The phrase historically referred to any motions made, prior to the impaneling of the jury, seeking a protective order prohibiting the opposing party, counsel or witnesses from offering certain evidence at trial or even mentioning the evidence at trial without first having its admissibility determined outside the presence of the jury. This concept has since expanded to refer also to such motions made during trial,161 to establish whether or not the movant may introduce certain types of evidence, and to raise other matters which it may be helpful to determine prior to trial.161.1 The pre-trial conference also affords an opportunity to raise these questions prior to trial.162
A court’s power to entertain motions in limine derives from its authority to decide preliminary questions concerning the admissibility of evidence.163 Such motions have the advantage of affording the court the opportunity to make a considered ruling based on the facts and authorities presented, rather than having to make an immediate ruling during the course of the trial. Such motions also have the advantage of shortening the trial by limiting arguments on disputed evidentiary issues during the trial. Having such motions decided in advance of trial also limits the risk that the jury will be exposed to prejudicial evidence and the consequent need for curative instructions.164 Disadvantages include the fact that continuous motions in limine may increase the overall time required to litigate the case and that indiscriminate use of the procedure could damage counsel’s case by suggesting evidence or theories that opposing counsel had not considered.
Rulings on motions in limine are interlocutory in nature and are subject to change during the course of the trial, depending on how the evidence develops. Even if nothing unexpected happens at trial, the judge is free, in the exercise of sound judicial discretion, to reverse or modify a previous in limine ruling.165
A court, in its discretion, may defer deciding a motion in limine until the evidence is actually offered at trial. This allows the court to avoid potential unnecessary advisory opinions. If no advance ruling is made, the parties may elect to abandon their positions for reasons unrelated to the anticipated ruling of the court. This results in promoting judicial economy. In other situations, a delayed ruling may be advisable because the facts as they develop during the course of the trial may affect the determination of admissibility. If the court decides to defer ruling on a motion in limine until trial to avoid the risk that the jury may be exposed to potentially prejudicial information, the tral court can and should require the offering party to notify the court outside the presence of the jury at the point in the trial when that party intends to introduce the evidence.166
As there are no jury trials in the Court of Chancery, the practice in that court is not to have pre-trial motions in limine on evidentiary issues, but rather to allow all the evidence to come in subject to post-trial briefing on its admissibility.166.1
160. Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481, 500 (Del. 2001); Dawson v. State, 581 A.2d 1078, 1087 (Del. 1990), vacated on other grounds, remanded, 503 U.S. 159 (1992); Cowee v. Wilmington Country Club, C.A. No. 95C-10-216 SCD, slip op. at 1 n. 1, Del Pesco, J. (Del. Super. Dec. 31, 1997).
161. See Dawson v. State, 581 A.2d 1078, 1087 (Del. 1990), vacated on other grounds, remanded, 503 U.S. 159 (1992).
161.1 See, e.g., Mergenthaler v. M & K Bus Service, Inc., C.A. No. 90C-12-85, slip op. at 2, Alford, J. (Del. Super., Fed. 22, 1995).
162. See Ch. Ct. R. 16; Super. Ct. Civ. R. 16; Super. Ct. Cr. R. 17.1; Comm. Pls. Ct. Civ. R. 16 Comm. Pls. Ct. Cr. R. 17.1; Fam. Ct. Cr. R. 16; Fam. Ct. Cr. R. 17.1; J.P. Ct. Civ. R. 14(b).
163. See D.R.E 104(a).
164. See § 25:10 for a discussion of curative instructions.
165. Dawson v. State, 581 A.2d 1078, 1087 (Del. 1990), vacated on other grounds, remanded, 503 U.S. 159 (1992); Wilmington Savings Fund Society v. Dotey, C.A. No. 91C-06-088, slip op. at 4, Babiarz, J. (Del. Super. Feb. 28, 1994).
166. Dawson v. State, 581 A.2d 1078, 1081 (Del. 1990), vacated on other grounds, remanded, 503 U.S. 159 (1992).
166.1. Pope Investments LLC v. Benda Pharmaceutical Inc., C.A. No. 5171-VCP (Del. Ch. July 11, 2012) (transcript).
© 2013 David L. Finger