Page 4 - Litigation

S4 | MONDAY, DECEMBER 14, 2015 | Litigation
| NYLJ.COM

Strategic Use of ‘Early’ in Limine Motions

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to resolve certain issues through an in limine Law and Rules, for example, contains any a motion for summary judgment.5
BY MICHAEL T. MERVIS motion made early in a case, before discovery limitation on when motions in limine can be Courts have applied the same logic when
AND EDWARD J. CANTER
has closed. This article will explore case law made.3 Although various court parts and indi- parties move in limine prior to the close of
in the area and identify considerations for vidual judges can have rules about the tim- discovery where the effect of granting the
M otions in limine (sometimes called “in counsel as they weigh the potential strate- ing of motions in limine, they usually require motion would be to bar a particular category
limine motions”) typically are thought gic beneits of making an in limine motion only that motions be made by no later than of damages.6 For example, in Hefti v. Brand
of as applications made proximate to
relatively early in a case.
a certain time (as opposed to requiring that Union Co., the court concluded that the
the time of trial that seek the exclusion of spe- Traditionally, in limine motions are used to they not be made before a certain time). The defendant’s motion, “though dressed up as

ciic pieces or types of evidence. In general, obtain a preliminary order, before (or some- rules of the Commercial Division, for example, a motion in limine, [was] really one for par-
New York state courts disfavor the practice time during) trial, excluding the introduction require parties to “make all motions in limine tial summary judgment.”7 In part, the court
of making such motions before the close of (or limiting the use) of what is argued to be no later than ten days prior to the scheduled came to this conclusion because, based on
discovery (particularly if they seek potentially inadmissible, immaterial and/or prejudicial pre-trial conference date.”4 But there is no pro- the motion papers, it was clear that the pur-
issue-dispositive relief), often on the basis evidence.1 The typical goal is to make clear hibition against bringing a motion before then.
pose of the motion was to limit damages to
that they are premature partial summary judg- that the challenged evidence will not even be As a practical matter, however, New a particular period. The court was not per-
ment motions in disguise. There are, however, referred to (much less offered) by an adver- York courts are generally reluctant to grant suaded by the defendant’s attempt to frame
some trial court decisions that can be used sary in front of a jury.
motions in limine prior to the conclusion of its motion, instead, as a request to “limit the

to support the argument that it’s appropriate
While most motions in limine are made discovery, especially when doing so would use of evidence.”8
close to the time of trial, New York state require the court to rule on substantive legal New York courts also have hesitated to
procedural law does not prevent litigants issues. New York courts also typically reject grant motions in limine when they are made
MICHAEL T. MERVIS is a partner and EDWARD J. CANTER from bringing them earlier—including prior the use of motions in limine to decide broadly at the outset of litigation, reasoning that evi-
is an associate at Proskauer Rose, where they both to the completion of discovery.2 No statute applicable or dispositive legal issues, charac- dentiary rulings should be made at or near
practice in the litigation department.
or provision in the New York Civil Practice
terizing them as the functional equivalent of
the time of trial so that the issues can be