Even though more experienced lawyers often have a great advantage in trial work, the real advantage goes to the lawyer who prepares. Young lawyers who research the issues and the elements of their causes of action well in advance of depositions can create their own advantage – one that is difficult for any lawyer to overcome.
Nowhere is this more true than in the area of motions in limine. Motions must be thought of, planned for, and won, well in advance of the trial, and even before the scheduling order requires that they be filed.
When conducting depositions with motions in limine in mind, you must plan for both “defensive” and “offensive” motions in limine. Defensive motions are those in which you will be seeking to defeat a motion from the other side to somehow limit your case. Offensive motions are where you will seek to limit the other side’s case.
Here are some guidelines to help you with both kinds of motions in limine, months before you file them:
Know the Law
The simplest motions in limine to defend against are those which seek to limit your proof because you have not appropriately set forth the evidence in your case. Some examples:
1. Not providing an expert with appropriate expertise, such as having a family practice doctor testify to the standard of care for a neurosurgeon.
2. Not having your expert testify to the appropriate standard of care, such as stating, “may” or “might” or “some.”
3. Not allowing your expert to testify at deposition to an area that you now what him to testify to at trial.
4. Allowing a fact witness to misstate facts so as to remove the basis for part of your case, such as changing the timing so as to remove notice.
Plan for Problems
If you know that a particular issue often comes up in the type of case you are undertaking, make sure you “short circuit” that issue in deposition, either by having it covered by deponents you offer, or by addressing it in the depositions you take. For example, in a Section 1983 civil rights case, where you as a plaintiff know you will face a summary judgment motion, outline your brief before depositions, so you can fill in at deposition the factual background you will need to prevail.
In medical negligence cases in Wisconsin , we have a statutory cause of action called “Informed Consent.” This is a powerful weapon in the plaintiff’s lawyer’s arsenal. However, there are statutory exceptions to when the law applies.
448.30. Information on alternate modes of treatment
Any physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments. The physician’s duty to inform the patient under this section does not require disclosure of:
(1) Information beyond what a reasonably well-qualified physician in a similar medical classification would know.
(2) Detailed technical information that in all probability a patient would not understand.
(3) Risks apparent or known to the patient.
(4) Extremely remote possibilities that might falsely or detrimentally alarm the patient.
(5) Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment.
(6) Information in cases where the patient is incapable of consenting.
So, in a medical negligence case, you would want to ask the doctor, for example, whether or not the patient would have been able to understand the information if it had been related to him or her, whether it was an emergency, etc. Often the doctor is not prepared on these issues and you can “slip them in” throughout the deposition. Then, when the defense brings a motion in limine to bar informed consent on the grounds that an exception applies, you have already covered it in your deposition of the defendant. Or, you can bring a motion in limine to bar expert testimony on one of the exceptions because the defendant has already ruled it out.
Be Alert to Looming Disasters
Sometimes an expert you are deposing will make a statement which you immediately want to bar with a motion in limine. However, take steps immediately, in the deposition, to make it possible for you to either limit or completely bar the damaging testimony. One example is when an expert states, “I have only seen one other time that this product has failed.” Or, “in my experience, this only happens when the user is goofing off.” Or, “this has never happened before.”
This type of testimony is easily handled by asking for the name of the industry group, or in-house person, in charge of compiling data regarding these incidents. Most states limit this type of testimony to instances where there is a procedure in place for gathering such statistics.
Wreak Havoc When Possible
Always be on the alert for an ill-prepared deponent and, when possible, establish parts of your case through him or her. Occasionally, you will strike gold. For example, if an expert has used an exemplar that differs markedly from the real item, you may be able to establish enough differences, or enough things the expert doesn’t know, to bar the expert.