December 23, 2024
The more a lawyer works on a case, the more they refine their arguments. As trial preparations unfold, a lawyer often sees the case in a new light, unveiling new strategies that might render a trial unnecessary. But by this stage, seeking summary judgment becomes unfeasible. In a strategic move before opening statements, some lawyers opt for a “motion in limine” or a “directed verdict motion” in front of the trial court. Yet, regardless of the motion’s title, attempting to eliminate considerations from the jury’s purview at this juncture risks a reversible error—even if the case appears destined for a directed verdict down the line. If you are poised to win a directed verdict but mishandle the motion, it could empower your adversary with grounds for a strong appeal, tipping the settlement leverage in their favor. Conversely, pushing for a trial or securing a quality appeal could bolster your negotiation position if a directed verdict seems unlikely.
Two statutes govern the procedure for using motions to resolve the merits of a case as a matter of law before a verdict. First is CPLR 3212(a), which sets the timing for the filing of a summary judgment. Second is CPLR 4401, which provides that such a directed verdict motion can only be made when a party’s adversary rests, or the adversary makes a fatal admission. Failure to comply with either statute can force a case to go to verdict.
Even though a motion in limine is primarily used to address evidentiary issues, some lawyers take the approach that all evidence on a particular claim or issue should be precluded the granting of such a motion could result in a directed verdict. However, from a procedural perspective, the Appellate Division often considers these motions to be procedurally defective and directs a new trial.
Farias-Alvarez v Interim Healthcare of Greater New York (166 AD3d 945 [2d Dept 2018]) is an example of how a motion to remove issues from the jury can backfire. The defendant in that case was a nurse who was responsible for bathing a disabled child. After the bath, the child’s skin began to slough off. There was an investigation by law enforcement, and the nurse pleaded guilty to a crime. The plaintiff did not move for summary judgment, even though there was a strong argument that the nurse’s criminal plea had collateral estoppel effect. Instead, on the eve of trial, the plaintiff made a motion in limine to invoke the doctrine of collateral estoppel. The trial court partially granted the motion, and the defendant was precluded from presenting a case-in-chief on the issue of negligence. However, the defendant was able to cross-examine the plaintiff’s witnesses, and, with just that cross-examination, the defendant was able to convince the jury that the child’s injuries were caused by an allergic reaction to medication administered after the bath.
The plaintiff appealed. The Appellate Division found that the trial court should not have granted any relief to the plaintiff, let alone the partial relief that it did. The Second Department held “[w]e agree with the defendant’s contention that the plaintiff’s pretrial application, characterized as one for in limine relief, was the functional equivalent of an untimely motion for summary judgment on the issue of liability (Farias-Alvarez, 166 AD3d at 947). Farias-Alvarez is one of many cases that hold it is improper to move, in limine, to preclude the introduction of all evidence of an issue. The Appellate Division considers such a motion a late summary judgment motion.
A similar, and equally problematic, tactic is to make a motion for a directed verdict at the motion in limine stage. Successfully moving for a directed verdict before the timeframe laid out in CPLR 4401 usually will result in a new trial. For example, the plaintiff in Fishon v Richmond Univ. Med. Ctr. (171 AD3d 873 [2d Dept 2019]) successfully moved for a directed verdict during jury selection because of alleged spoliation of evidence. Before the plaintiff could proceed with what she thought would be a trial on damages, the Appellate Division issued a stay of all proceedings in the trial court pending appeal (Fishon, 171 AD3d at 874). Ultimately, the Appellate Division concluded that the trial court should not have even considered the plaintiff’s directed verdict motion and directed a full trial on all issues (id.).
The strategic significance of motions in limine cannot be overstated—they can shape trials by controlling the evidence that can influence the jury’s perception. However, sometimes, it is better not to make a motion in limine. By collaborating with appellate counsel, trial lawyers can map out a legal strategy that enhances the factual arguments they will make to the jury. Contact The Law Offices of Seth M. Weinberg, PLLC, to discuss your trial strategy.