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Your Medical Malpractice Trial is Moments Away From Starting; Your Lawyer Decides He Needs to Make a Motion in Limine. What's That?

First, a 'motion' is nothing more than an attorney asking a judge to take action. To do something. Usually, this 'motion' is done formally on written papers.

"Judge, the defense isn't giving us medical records..."
"Judge, the defense hasn't responded to our requests for documents..."
"Judge, the defense is delaying this case..."

In response, the Judge will figuratively turn to the defense and say "Well, why haven't you done what they claim?"

The defense then has an opportunity to respond. In the 'old days' judges in New York would often have oral argument on these motions. On any typical morning in court, you'd have fifty to one hundred lawyers in a courtroom waiting their turn to argue different issues that came up on their case. If you were toward the end of the calendar, you'd be sitting around for hours listening to these arguments.

Today, most judges refuse to hear oral arguments about discovery matters. They want these issues disposed of quickly. They want the attorneys to stipulate to what's needed. The judge will often resolve these issues by telephone conference with his law clerk threatening both sides if the judge has to get involved.

These discovery issues can an often are a nuisance for all involved. It often sounds like two kids in the playground arguing. "Judge, he didn't give me a permission slip for this health care provider. He's supposed to! I need it to properly evaluate the damages in this case." 

In response, the opposing lawyer may say "Judge, my client saw that doctor fifteen years ago and it has nothing to do with our claim or the defenses being raised here." The ultimate effect of many of these discovery issues is often not earth shattering for the case.

But with a motion in limine, it often is.

Ok, so now we know what a motion is. What the heck is a 'motion in limine'?

It's a phrase to describe an attorney who is asking the judge to take action just before your trial actually starts. Here's the scenario...

You've sued your doctor for medical malpractice. You claim your doctor violated the basic standards of medical care. You claim that your doctor was careless and that his wrongdoing caused you harm and injury. Your doctor disputes all of your claims and says "We'll see you in court!"

Two years later, your case is finally approaching trial. Your lawyer is furiously preparing your case for trial. Jury selection is next week. Your lawyer has prepared you for the questions he'll be asking you at trial. He' prepped his medical experts who he'll be calling to testify in support of your case. His investigator is working overtime to get certain witnesses into court. He's prepared exhibits for the jury to see. He also tells you that there are a few legal issues that are present in your case that he has to address with the judge before you actually start your trial.

A legal brief is important for the judge.

Where an attorney knows that various legal issues will arise during trial, it is important for the attorney to prepare a legal brief arguing and explaining why your lawyer is right and the opposing lawyer is wrong. The brief is really a detailed report filled with similar cases that support his argument and explaining away why other cases are not relevant.

On the day that your trial is scheduled to start, your lawyer goes into court to pick a jury. Six members of the community will be selected who are willing to decide if your claims are more likely right than wrong. After the jury has been selected, the lawyers will appear in the Judge's private office, known as 'chambers'. During this brief conference with the judge, he'll want to know what this case is about. He's likely never seen this case before and knows nothing about the facts or about the issues that you and your lawyer have lived with now for years.

Your attorney will give the judge a summary of the facts of your case and hand him a set of marked pleadings. That's nothing more than a list of general allegations and the defense's responses. Essentially, it reads like this...

Plaintiff: "We claim the doctor was careless."
Defendant: "No we weren't."

Plaintiff: "We claim the doctor's negligence was a cause of my clients' injuries."
Defendant: "No it's not."

Plaintiff: "We claim my clients' injuries are permanent."
Defendant: "No it's not."

This is just so the judge can briefly see what the legal issues are.
The judge then asks "Is there anything else that needs to be addressed before we start trial?"

You lawyer immediately perks up and says "Yes Judge, there is. I have a motion in limine..."
Your lawyer is asking the judge to take action. He's asking the judge to make a ruling that is going to effect the entire trial. He's asking the judge to make a legal decision, usually about evidence that can or can't come into the trial. Since this judge is now in charge of everything related to your trial, the decision he makes will impact the legal issues in your case.

The decision he makes could affect the outcome of your case.

Here's an example. Let's say you were a passenger in a car. You were on the way home from a bar with some friends after a nice night out. You had a couple of beers. The driver of your car had nothing to drink as he was the designated driver. While stopped at a red light, waiting for the light to change, a careless driver hit your car in the rear causing you terrible injury.

You're taken by ambulance to the hospital where a nurse in the emergency room smells alcohol on your breath and asks you how much you had to drink. You tell her "a few beers." While in the hospital, the doctors and hospital staff dropped the ball with your care and carelessly caused you harm and injury.

You sued the negligent driver and the careless hospital staff for causing your injuries. As your case is moments from starting trial, your lawyer asks the judge to take action. 

"Judge, I have a motion in limine," he says. "My client was a passenger in this car that was hit from the rear. While in the hospital ER he was asked by a nurse how much he'd had to drink that night. He responded 'a few beers'. His blood alcohol level, taken in the emergency room, showed he was over twice the legal limit. He was drunk. No question about it. However, his alcohol consumption has nothing to do with the claims we're making in this case. It has nothing to do with the careless driver hitting his car in the rear. It has nothing to do with whether that caused his injuries or whether his injuries are permanent.

It has nothing to do with whether the hospital staff violated the standard of care. Nor does it have anything to do with whether that carelessness was a cause of my clients' injuries. Nor whether his injuries are permanent. I ask you to rule that anything concerning my clients' consumption of alcohol be prevented from being disclosed or even mentioned by anyone during this trial."

This example focuses on evidence of alcohol consumption in an accident and medical malractice case. The judge will then listen to the defense attorney who must now think on his feet, even though he'll likely be sitting down while talking to the judge in chambers. He'll have to come up with some legal reason why he should be allowed to mention how drunk you were. He was hoping to splash that fact to the jury all during your trial. What that has to do with the hospital staff being careless is anyone's guess.

He comes up with this argument...

"Judge, Mr. Oginski's client told the nurse in the emergency room that he'd had only a few beers. The blood alcohol level revealed that he was totally smashed and clearly had much more to drink than what he disclosed to the nurse. The reveals that he was willing to lie and hide his alcohol consumption from the nurse. This suggests that he's hiding something that affected the decision making process in the emergency room."

The judge might reply...

"Do you have a medical expert coming in to testify about the effect of alcohol consumption and what effect it had on the nurses and hospital staff? Why did they do a blood alcohol level to begin with? Was this information necessary to properly treat the injuries he suffered from the car accident? If not, then the alcohol comment and the blood alcohol result are out since they have nothing whatsoever to do with evaluating his injuries from being hit in the rear while a passenger."

This ruling will clearly impact how the defense attorney argues his case. If he was planning on mentioning that you were drunk repeatedly throughout your trial, that will immediately change his strategy. Now hopefully, the jury can focus on just the issues involved without being distracted by other nonsense.

Now you know what a motion in limine is. To learn more about motions in limine I invite you to watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer