Does your motion in limine sufficiently preserve your objection to the introduction of evidence at trial, or do you need to be on your toes to make a contemporaneous objection at trial?  A recent Illinois decision illustrates the best practice of renewing arguments raised in motions in limine at trial.

In Roach v. Union Pacific R.R., 2014 IL App. (1st) 132015, a wrongful death suit, the defendant moved in limine to preclude the testimony of the decedent’s family physician regarding the cause of death.  The trial court denied the motion.

On the morning of the day that the physician’s testimony was going to be read into evidence at trial, the defendant renewed his objection, stating, “I just want to restate and preserve our objection to [the physician’s] testimony in its entirety which we’ve discussed in the motions.” Id. at *5. The trial court responded, “The Court’s ruling stands. Your objections are made. They are in the record to preserve the issue.” Id.

Later that afternoon, the physician’s deposition was read into the record and the defendant did not repeat its objection immediately prior to the reading.

On appeal, the plaintiff argued that the defendant waived the issue for appellate review by failing to repeat in the afternoon what it had stated in the morning.

Not so. The appellate court determined that an objection made the same day that the deposition was introduced was sufficiently contemporaneous to preserve the issue for appellate review. The appellate court further observed that once an objection to an evidence deposition is ruled on by the trial court, there is no need to object again when the testimony is read to the jury.

Preservation Issue:

• If a motion in limine is denied, the complaining party must contemporaneously renew that objection at trial.

Tips:

So you have filed your stack of motions in limine and obtained rulings on these motions prior to the start of trial. You take the motions and put them in a box in the back of the courtroom and figure all of your objections have been preserved.  Wrong!

With regard to motions in limine that are denied before trial, it is always a good practice—and in many jurisdictions a necessary preservation practice—to make a contemporaneous objection at trial when the evidence at issue is sought to be introduced.  The rule is grounded in common sense. As all trial lawyers know, the court’s understanding of the evidence and the parties’ theories may change as the trial develops. Accordingly, a contemporaneous objection allows the court to consider the admissibility of the evidence at issue in light of the current record as it exists before the jury.

Here is a simple example. Prior to trial in a premises liability case, the defendant moves to exclude evidence of other incidents involving the same property.  The court denies the motion because it finds that the proffered incidents are relevant in that they are substantially similar to the incident in issue.  At trial, however, it turns out that the incident did not happen as the plaintiff had previously testified, and therefore the other “similar” incidents are in fact dissimilar and should be excluded as irrelevant. Without that renewed argument, you may not only lose an opportunity to convince the court to change its mind, but also lose the opportunity to raise the issue on appeal.

The same thing might happen with a motion in limine that was granted.  Consider the following example: Prior to trial, the court rules that evidence of the plaintiff’s excessive use of alcohol has no bearing on any of the issues in the accident at issue. That ruling may have been correct at the time it was made. But then, during the plaintiff’s presentation of her case at trial, she puts on evidence that she cannot work because of injuries she suffered in the accident.  You want to take the position that the door was opened to the introduction of evidence of her alcohol use to show that the real reason she cannot work is that she is drunk all the time.  Unless you articulate that new argument to the court, you will not only lose an opportunity to get the evidence in, but you will lose the right to make that new argument on appeal.

It is for this reason that many jurisdictions require a contemporaneous objection at trial, notwithstanding having raised the objection in a motion in limine, in order to preserve the issue for appellate review.