Key Strategies to Get Your Evidence

Admitted & Keeping Theirs Out of it

1. Strategies for Getting Evidence Authenticated Beyond Set
Criteria Guide
There are multiple methods for getting your evidence authenticated for your case. The
conventional methods consist of interrogatories, requests for production or admission, and
depositions. Normally, any evidence that is presented in the course of any of these
aforementioned discovery methods is presented to the court as being authenticated because the
opposing counsel included it in their responses or production of evidentiary material. There are
also multiple other methods of authenticating your evidence. These methods include judicial
notice, accumulation of evidence, stipulations negotiated with opposing counsel, and using
motions in Limine. We will dedicate time to all these topics during this presentation with the goal
of giving you a better understanding of how to authenticate your evidence beyond the traditional
criteria.

2. Use of Pre-Trial Options to Authenticate

Most of the pre-trial options are going to be your more traditional methods for discovery and
authentication. As we previously mentioned, these methods are the use of interrogatories, using
requests for production, and employing depositions among the appropriate parties. All of these
methods are used in during the course of standard divorce proceedings, and tend to reveal a lot of
information. Even if they don't reveal the information that you might hope to discover, they
normally tend to reveal leads or sources where the information can be obtained.

Typically, interrogatories are aimed at gathering initial information and facts that the opposing
party could not recall without reference to particular documents. Interrogatories, in conjunction
with Requests for Production then serve to produce the traditional sources of information for a
divorce attorney. The evidence that usually reveals valuable information in these traditional pre-
trial methods of discovery are bank statements, individual tax returns, corporate or partnership
tax returns, mortgage statements, rental or lease agreements, and telephone records. Now,
however, we have a broader array of materials with which we can target these traditional
discovery tools. These new materials can be used for the same purpose. These items include, but
are not limited to home and work computers, cell phones, tablets, other various personal
electronic devices, flash drives, external hard drives, and cloud storage.

When conducting discovery using these traditional pre-trial methods, try to keep in mind that
with all this information, there is no guarantee that your case will be successful. However, solid
preparation will drastically increase your chances of success at settlement or at trial later.

A request for admission in regards to authenticating evidence falls under Fed. R. Civ. P. 36. This
rule that governs admissions states that:
(a) Scope. A party may serve any other party a written request to admit, for purposed of the
pending action only, the truth of any matters within the scope of Rule 26(b)(1)to:
(i) The facts, the application of law to fact, or opinions about either; and
(ii) The genuineness of any described documents. 
(b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is
conclusively established unless the court, on motion, permits the admission to be withdrawn or
amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would
promote the presentation of the merits of the action and if the court is not persuaded that it would
prejudice the requesting party in maintaining or defending the action on the merits. An admission
under this rule is not an admission for any other purpose and cannot be used against the party in
any other proceeding.

29A Am. Jur. 2d Evidence § 1053.

An admission of authenticity can also be utilized at a pre-trial conference. The rule that governs
this method is Fed. R. Civ. P. 16(c)(2)(c). This rule states that:

(c)(2) Matters for Consideration. At any pre-trial conference, the court may consider and take
appropriate action of the following matters:
(c) Obtaining admissions and stipulations about facts and documents to avoid unnecessary proof
and ruling in advance on the admissibility of evidence.

The last traditional method could be utilized is attaching of a document as an appendix to

pleadings.The rule that governs this method is Fed. R. Civ. P. 10(c). The rule states that:
(c) Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference
elsewhere in the same pleading or in any other pleading or motion. A copy of a written
instrument that is an exhibit to a pleading is part of the pleading for all purposes.

It's important to keep in mind that when reviewing all of the methods for evidence to become
authenticated and admitted, there needs to be thought given to the most appropriate method
given the type of evidence you are trying to authenticate.

3. Judicial Notice of Electronic Evidence

An additional method that is often overlooked is utilizing Fed. R. Evid. 201(b). This rule governs
the judicial notice of evidence. The purpose of this rule is to alleviate the expenditure of
resources during the discovery and authentication process. For the evidence to be authenticated
in this manner, Fed. R. Evid. 201(b) states that the fact must not be subject to reasonable dispute.
A perfect case to demonstrate the use of judicial notice in a more contemporary scope is United
States v. Brooks.

In Brooks, the court analyzed the admissibility of global positioning system (GPS) data that was
presented at trial. The defendant challenged this data, noting that it was subject to reasonable
dispute. The court took judicial notice of the reliability and accuracy of GPS data, stating that,
"[c]ourts routinely rely on GPS technology to supervise individuals on probation [...] and, in
assessing the Fourth Amendment constraints associated with GPS tracking, courts generally have
assumed the technology's accuracy."

The courts have admitted government websites and any data include therein. This is mainly
because the information can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned. The government data and information from websites, might fall
under self-authentication of Fed. R. Evid. 902.

Courts have taken time to analyze the admissibility of information from private websites under
the use of judicial notice. The case that embodies this concept is O'Toole v. Northrup Grumman
Corporation.

In O'Toole, the court looked at judicial notice of the lower court recognizing the facts of a
retirement fund's earning history from the respondent's website. The lower court reasoned that
the court should take judicial notice of these facts regarding retirement fund earnings because the
respondent could not reasonably explain how it would otherwise be unreliable and inaccurate.
The 10th Circuit Court recognized the reasoning of the lower court as valid, and affirmed the
lower's court's judicial notice.

An attorney could also use affidavits to authenticate evidence. This is particularly appropriate for
moving for summary judgment under Fed. R. Civ. P. 56. The affidavit evidence normally would
face hearsay issues, but not when submitted in a summary judgment context.

4. Accumulation of Evidence to Prove Authenticity

An additional method to prove authenticity is the accumulation of evidence. This concept is
applicable in a general context, as well as a more specific context. Before we get into the details
of accumulation of evidence to prove authenticity, it is important to recall Fed. R. Evid. 901,
which states that authentication standards are satisfied by evidence sufficient to support a finding
that the matter in question is what the proponent claims it to be.

Generally, in the context of Fed. R. Evid. 901, an accumulation of evidence can prove to satisfy
this standard. The more extrinsic evidence you have surrounding the evidence desired to be
submitted, the more likely you will have success in admitting it. Items that fall under Fed. R.
Evid. 902 do not need the extrinsic evidence to prove authenticity, but items such as:

1. Testimony of a witness with knowledge;

2. Non-expert opinion about handwriting;
3. Comparison by an expert witness or the trier of fact;
4. Distinctive characteristics and the like;
5. Opinion about a voice;
6. Evidence about a telephone conversation;
7. Evidence about public records;
8. Evidence about ancient documents or data compilations;
9. Evidence about a process or system; and
10. Other methods provided by a statute or rule.
All of these items require extrinsic evidence in order to authenticate. It logically follows that the
more surrounding evidence you have, the possibility of success dramatically increases.

For a more specific look at two sections under Fed. R. Evid. 901, 901(b)(3) and 901(b)(4), the
accumulation of evidence is imperative. Fed. R. Evid. 901(b)(3) speaks to comparing already
admitted evidence to evidence seeking to be authenticated. This concept of comparison speaks to
the very nature of accumulating evidence to prove authenticity. The more evidence that you have
that is already authenticated, the more you have to compare evidence to. This should always be
in the back of your mind when seeking approaches on how to authenticate and admit.

Fed. R. Evid. 901(b)(4) addresses the distinctive characteristics of evidence. This rule is
especially relevant with regards to electronically stored information (hereinafter referred to as
"ESI") evidence. With the rapid advances in technology, it seems crucial that this specific rule be
addressed. Now in regards to the accumulation, general appearance, content, substance, internal
patterns, and other characteristics of the like taken in conjunction with the surrounding
circumstances can more likely than not lead you to success in authenticating your evidence. For
example, in the context of ESI evidence, the type of postings that a person makes on social
media or on the internet in general, the nicknames or names used online, phrases frequently used,
and etc., all may be used in conjunction with each other to authenticate under this rule.

5. Negotiating Stipulations with Opposing Counsel for

Admission of Evidence
Negotiating and settling evidentiary issues with opposing counsel can be tricky and sometimes
extremely difficult, but there are techniques and tactics that can be employed to lead you to
successful authentication of your evidence through the use of stipulations in a case. Negotiating
stipulations is a way to block and admit evidence before you even step foot in a court room for
trial. The evidence can be discussed and negotiated in pre-trial conferences and settlement
discussions as well.

Discussions for settlement make it possible for the parties to not have to bring all of their
evidence forward to the court in a process that can be highly embarrassing and taxing on parties.
Discussing evidence or potential evidence at a pre-trial conference with opposing counsel can
assist in the other party's need or want to settle the case by clearly showing the other side the
stakes at risk if they want to proceed to trial.

In conducting negotiations with opposing counsel or other interested parties, it is important to

know the stages of negotiation, how to recognize those stages, and what strategies and
techniques to employ in those stages to best increase your chance for success.

The first state of negotiating is the preparation stage. There are multiple things going on in this
stage, and it is vital to the interests of your client that you do your due diligence in this stage. The
first element within the preparation stage is client preparation. In regard to negotiating
evidentiary stipulations and client preparation, there isn't a whole lot to note, other than that it is
always important to keep your client's goals in mind. Does your client have goals that are
essential, important, or even just desirable? Keep these goals in mind when negotiating
evidentiary stipulations, and what positive or negative repercussions the stipulations could have.

Also, make sure that you have all the factual information that you need before you go in to
negotiations with opposing counsel. More information will help you anticipate claims and
vulnerable areas of evidence. The facts you are provided with by the client could determine what
stipulations you are able to concede, stipulations that you need, and stipulations that would be
advantageous.

The other major thing that is going on in this stage is the lawyer's preparation. The preparation of
the attorney hinges on what information is provided to you within the client preparation stages,
so again, it is extremely important to do your best to extract all relevant and material information
from you client at the outset.

Many attorneys should be familiar with the Best Alternative to a Negotiated Agreement
(hereinafter referred to as "BATNA"). Essentially, BATNA represents what you are prepared
and willing to do if the negotiation does not produce fruitful or successful merits. This should be
kept in mind while negotiating evidentiary stipulations with opposing counsel. It is
recommended that you analyze the likely outcome of every conceivable scenario. This could
determine the value of a successful negotiation from your client. So when preparing to
commence negotiations, know what your bottom line deal is for your client. What are results that
they are willing to deal with? Always keep in mind the best interests of your client when
planning and conducting negotiations. It is important to stay within the boundaries set by your
client. Having a BATNA, and a game plan can lead an attorney to predict which attorney is
likely to prevail to a degree of probability and potentially the amount of an award.

Sometimes, there will be times when there is evidence or facts that you did not anticipate. The
best thing to do in these scenarios it to either break from the negotiation, and reevaluate your
strategy, or continue on with your strategy and try and overcome any challenges the new facts or
evidence presented.

The BATNA analysis should be conduct in the context and lens of your opponent as well. The
analysis of the facts you have at your disposal can help you paint the bigger picture of the case.
Make sure you have employed all the information revealing procedures possible prior to that
given time (i.e. interrogatories, requests for admission, depositions, etc.). The big question in
analyzing your opponent's position is what would you be concerned with if you represented the
other client.

The next stage of negotiations is the preliminary stage. The important element of this stage is to
ensure that you establish a conducive and positive tone for negotiations.

In regards to establishing a conducive tone, it is vital to being successful in dealing with your
opponent. A good tone can lead the opposing counsel to respect you more, even after the
negotiations. This will be remembered by the opposing counsel and will allow you to be easy
and comfortable to work with in future case. Rapport is important is the legal community, and it
has large implications on the tone of negotiations. Be mindful of this when engaging with
opposing counsel when negotiating or engaging in various other forms of conduct in the ordinary
course of business. Part of establishing tone is also knowing what kind of negotiator the
opposing counsel is. You should ask your co-workers and peers about your opponent, to try and
acquire information that can help you tailor your strategy to maximize results for your client.

The third stage of negotiations is the information stage. There cannot be enough emphasis put on
trying to understand the underlying interests of the opposing party. This can aid you in creating
value for the opposing party that you can later negotiate with. Once you can identify the interests
of opposing counsel, you can tailor your stipulation negotiations around those interests, to try
and keep evidence out, or admit evidence accordingly. More importantly, the pie can be
expanded by discovering information that can be beneficial for both parties.

One way to acquire such information is to use information seeking questions. In asking these
types of questions, you will obtain more information than asking specific questions seeking
specific answers. Try to ask broad questions. This will sometimes induce the other party to speak
more, and therefore directly or indirectly disclose relevant information. Also, people sometimes
assume that the person asking the question knows the general premise of the answer. In thinking
such, they will reiterate what they think you know. This can be an effective tactic if employed
properly. Many attorneys and negotiators rush through this stage eager to get to the distributive
process and as a result, miss important pieces of information. Missing this information could
ultimately lead to achievement of a less beneficial outcome.

The last stage of the negotiation process is the distributive stage. For the most productive
negotiation session, try and create a win-win situation. Let the opposing side have their little
wins that you can afford to concede, and focus on achieving wins in the more conflicted areas of
the case. This will maintain the good rapport with opposing counsel, which will likely reflect at
later states of the case, and will provide your client with a win.

A key element in the distribution stage, and in allowing your opponent to have their small wins,
is to have a concession pattern or plan. If you have a carefully planned concession pattern that
rationally explains your concessions, you will often undermine the confidence of less prepared
opponents. The timing of these concessions is also vital. If you concede on a point early, you set
the tone for more concessions to come in the future. Properly timed concessions can signal a
cooperative attitude, as well as present the impression of being tough or bound by certain
constraints. Try and use the timing of these concessions to your advantage, and always think of
the repercussions.

An important aspect of negotiating is recognizing and sometimes using specific tactics that might
be helpful. In some contexts, the scenario calls for power bargaining. Power bargaining is
essentially trying to induce the opponents that they have to provide more favorable terms than
they actually have to. This forces the opponents to reassess their positions, and will often throw a
skilled negotiator off their game. This can be achieved by expressing your strengths as greater
than your opponent perceives them, or weaknesses as less vulnerable than perceived. Self-
assurance is key to using tactic. The person employing this tactic should always appear to be in
control of the negotiation, the agenda, and the conversation. This will allow the attorney to lay
the proper foundation to employ power bargaining techniques. Implementation of this tactic will
most commonly take the form of legal arguments. Attorneys will normally emphasize factual
aspects of the case, potentially applicable legal doctrines, statutes, regulations, judicial decisions,
and so on. Often, non-legal arguments prove effective as well, although maybe less so within the
context of evidence. These types of persuasive arguments have to be presented with caution.
They should appear to be relatively even handed and objective in nature if they are to appeal to
the opposing party. Try to provide valid reasoning and objective standards behind your
persuasive arguments. Also, present these arguments in a comprehensive format rather than
conclusory. This will allow the opposing party to see where you are coming from and more
likely than not, they will agree with your rationale.

6. Blocking Evidence
The purpose of effective evidence blocking is to frame the case and the facts in the light most
favorable to your client. To block evidence that is detrimental to your client, it is recommended
to use contemporaneous and proper objections during cross-examination of a witness by the
opposing party. Objections can only be made on certain grounds allowed by jurisdiction but
usually state courts will recognize objections to relevance, hearsay, authenticity, and lack of
foundation. In order for evidence to be admitted, the previous mentioned elements must be
present. For instance, objecting to a witness speaking about a certain event in the plaintiff's
marriage for lack of personal knowledge.

There are essentially four stages or forms of evidence blocking that attorneys should be aware
of.These stages or forms include the suppression or discovery violations, witness problems,
evidentiary problems, and presentation problems.

It is always advisable to think about potential discovery violations. Attorneys should think about
whether the evidence was obtained illegally in an applicable case context. They should also be
aware of the exceptions to the illegally obtained evidence. These exceptions include inevitable
discovery, independent discovery, standing, good faith, and attenuation.

There are also numerous potential problems with witnesses that could prevent evidence from
being admitted. The witness may not actually have personal knowledge to what they are
testifying about. The witness could also have applicable privileges available, such as marital
privilege, attorney-client privilege, and so on. It is important to make sure the witnesses used to
present evidence are vetted for these types of potential issues in order to exclude opponent's
evidence, or in trying to admit yours.

There can also be a multitude of evidentiary problems. Analyze the evidence closely under
hearsay rules and the exceptions, relevancy standards, and whether or not the evidence is
substantially more prejudicially than it is probative.

Lastly, there could potentially be presentation problems that will most likely always arise out of
trial at a moment's notice. Make sure opposing counsel is laying down the proper foundation for
evidence, and if they do not, there is a prime opportunity to block the evidence coming in
through a timely and proper objection. Other common objections should be raised under
appropriate circumstances, such as leading questions on direct examination of a witness.
There are numerous objections can be made prior to trial to keep evidence out. Evidentiary pre-
trial motions are usually filed weeks or at least days before trial in order to allow for planning
accordingly. Pre-trial memorandum and conferences are also a good way to preclude evidence
before even getting to trial. Sometimes, the pre-trial memorandum is also known as a pre-trial
statement. Objections do have to be timely and have a legal basis, but you will encounter a lot of
objections that do not have a purpose other than to disrupt opposing counsel in their line of
questioning. During trial, most attorneys will listen for buzzwords and make Fed. R. Evid.
objections off of that. This tactic will help save them time trying to figure out if what was said or
presented fits into an objection before the timely opportunity for an objection has passed.

Important objections to keep in mind during trial, and that most frequent, are hearsay, relevancy,
lack of foundation, cumulative, and beyond the scope. When considering relevancy objections,
think about whether: (1) it the evidence generally relevant under 401 and 402; and (2) Does Fed.
R. Evid. 403 considerations prevent admission? Additionally, special relevancy rules may
exclude the offered evidence, such as : (1) do character traits apply under rule 404 or 405; (2) do
other acts rules apply under 404 (b); do habit rules apply under rule 406; and lastly, do policy
exclusion rules apply under rules 407-412?

Another popular objection is lack of foundation. All exhibits have foundations before they can be
properly admitted into evidence. In some cases, it may not be wise to object under lack of
foundation because opposing counsel might just be missing an element to establish proper
foundation, and raising the objection may just force the opponent to establish said missing
element. Conversely, where you absolutely want to keep the exhibit out and there is a substantial
likelihood that the proper foundation cannot be established, it is important that you make a
timely objection.

Another popular objection is cumulative evidence under Fed. R. Evid. 611. The court has
discretion to control this evidence during trials, and can rule on whether it is necessary or
whether it is just merely repetitive. If counsel presents one exhibit after another that reinforces
what all the others have presented, and there is no additional value, the exhibits are unnecessarily
cumulative and therefore objectionable. The most common example of this in the context of
exhibits is photographs. In the context of witnesses, the most common example of cumulative
evidence is where repudiation evidence is involved.

The last objection that we'll discuss is beyond the scope under Fed. R. Evid 611. Under Fed. R.
Evid. 611(b), cross-examinations should be limited to the subject matter of the direct
examination and matters affecting the witness's credibility. Any time during cross-examination
or rebuttal, if the questioning or content is not within the scope of the respective direct or cross,
than a timely objection is proper.

There are many additional objections that should be noted in order to keep evidence out. This list
is not an exhaustive list, but rather just a highlight

7. Is your Prima Facie Evidence Refutable?

There are multiple grounds for rendering your prima facie evidence refutable. There are
numerous procedural and technical defenses to a prima facie case, such as:

1. Disability or incapacity of a party;

2. Other pending actions;
3. Res Judicata;
4. Claim preclusion;
5. Collateral Estoppel;
6. Judicial Estoppel;
7. Lack of jurisdiction;
8. Failure to qualify as a real party;
9. Summary judgments; and
10. Default Judgments.

Prima facie evidence is evidence that, until its effect is overcome by other evidence, compels the
conclusion that the evidence is true. Prima facie evidence is nothing more than sufficient
evidence to submit to the fact finder, and to sustain a favorable judgment. When contradictory
evidence is introduced, the prima facie evidence loses effect.

At the point that you have established prima facie  evidence, the other party has the burden to
refute the presented evidence. A general denial of the evidence is not sufficient to avoid a
summary judgment in favor of the presenting party, but rather the other party must offer specific
factual evidence creating a genuine issue for the jury.

8. Use of Interrogatories to Authenticate Evidence

Under Fed. R. Civ. P. 33, interrogatories can be used to prove the authenticity of evidence during
a trial. Asking a party to identify or authenticate evidence in an interrogatory can be binding
upon the other party as authenticate and admissible evidence if relevancy is met. This is similar
tactic to requests for admissions or production of discovery materials.

In Biax Corporation v. Nvidia Corp., the party was compelled to provide more complete
information in response to an interrogatory for the purposes of authentication.

9. Successfully Using Motions in Limine

There are multiple reasons for utilizing motions in Limine, but we will try to address the use of
the motion authentication and admission of evidence, as well as keeping your opponent's
evidence out. There are five main objectives in using a motion in Limine.

The first objective of using the motion in Limine is to isolate the potentially prejudicial evidence
from the jury. The idea is to preserve neutrality in a proceeding by preventing any reference or
inquiry into materially prejudicial evidence. Attorneys should use creativity and knowledge to
anticipate the potential areas of prejudice that the opposing party will attempt to target. The
second objective in using the motion in Limine is discovering your opponent's case. The motion
can be used to probe any specific facts that may be important to the opposing party's case. By
making a pre-trial motion on a vulnerable evidentiary area, the attorney can force opposing
counsel to disclose what prejudicial evidence they intend to offer, as well as the legal theory they
intend to rely on as well. The third objective in using a motion in Limine is to force your
opponent to make elections. Because the opportunity to present certain evidence during trial may
be foreclosed by a motion in Limine, the opposing attorney is forced to make evaluations and
elections regarding the evidence they choose to present and when exactly to present it.
Depending on the strength of their entire case, a decision not to resist the motion and not use the
prejudicial evidence at trial may spring from a sense of "fair play." Conversely, the attorney may
become so aggressive and insistent about his right to use the prejudicial evidence, that he might
commit reversible error at the trial by presenting material that he might otherwise not have
offered. Any explanation by the opposing counsel of relevancy of the evidence or the purpose for
which it is being offered can be considered a limiting commitment, and any use of that evidence
at trial for other purposes will afford the movant an opportunity to argue unfair surprise, to
restate his contentions in prejudice, as well as to obtain exclusion of the evidence at that time.

The fourth objective in using motions in Limine is to preserve the record for appeal. Whichever
way the court rules, the attorney urging prejudice is in a relatively strong position when he
initiates his resistance to the prejudicial matter through a pre-trial motion in Limine. A favorable
prohibitive order will indicate that a judge at the trial level concluded that the evidence was so
inflammatory that its very mention should be suppressed to ensure a fair trial. Thus, any direct or
indirect violation of the order will enable moving counsel to argue more persuasively on appeal
that reversible error resulted. Or, if the motion is denied, counsel can argue that the trial was
tainted from the start by the green light given by the trial judge to opposing counsel to parade
prejudice before the jury.

The last objective in using a motion in Limine is to obtain a favorable outcome or settlement
offer. Success in this motion can aid counsel to acquiring more favorable terms than it might
have been able to obtain before trial. The plaintiff and defendant in a civil proceeding may find
that the outcome of a hearing on a motion in Limine will supply the leverage needed to produce a
settlement between the parties. Depending on whether the motion is granted or denied, the
parties' valuation of their respective cases will be affected accordingly.

Now that we have established the objectives in using the motions in Limine, we'll discuss the
types of motions. The first type of the two motions is a prohibitive motion. A pretrial prohibitive
form may either be absolute or in a preliminary form. The absolute form prohibits a party from
offering and mentioning the offending evidence at trial in any way. It is in fact and in effect, a
final ruling of the inadmissibility of potentially prejudicial evidence. The preliminary order
prohibits the party from offering or discussing the prejudicial proof in front of the jury at trial
unless the matter is first taken up with the court in chambers and the court rules that it is
admissible. In contrast to the prohibitive motion, which seeks a judicial declaration that certain
evidence expected to be offered by an adversary is inadmissible, the permissive motion is made
by the party proposing to offer sensitive evidence and seeking a pre-trial determination that the
evidence is admissible under the circumstances of the case. By submitting possibly prejudicial
evidence prior to judicial scrutiny through a permissive motion, the attorney who proposed the
evidence may avoid committing reversible error at trial. It should be noted that a motion in
Limine is not a substitute for a summary judgment motion, nor should it ordinarily be employed
to choke off an entire claim or dense.

The motion can also be used to address the excessive quantum of proof. Counsel can often use
this motion to force his adversary to scale down the quantity of evidence he intends to offer in
proving an element of the case. If the trial judge can be convinced that a large amount of proof
would be of limited use in comparison with the amount of trial time it would require, or that
undue emphasis may unduly exaggerate the importance of a particular issue, he may grant the
motion.

The motion can also be applied to prejudicial documents. The court will often require the parties
to a civil proceeding to exchange lists of the documents they propose to offer as evidence at trial.
It may also require that any objections to the admissibility of these documents be made by a
certain date so that the tentative pre-trial rulings based on the parties' descriptions of the
document might be made.Doing this gives attorneys an opportunity to motion in Limine that
certain aspects of the opponent's document be excluded as prejudicial. Motions of this nature
have been granted on several grounds. For example, documented accident investigation reports
have been excluded for their opinionated, non-factual, and conclusory nature. Language
contained in pretrial orders that exclude documents tends to be quite precise as to the exact effect
of the order with respect to the admissibility or inadmissibility of the questioned material. An
order in "absolute-prohibitive" form, for example, will often specify that counsel is not to reoffer
the excluded documents either in court or in chambers. Likewise, a "preliminary-prohibitive"
order will generally particularize the procedure that counsel must use to seek admission of the
sensitive documents during the trial. Such preciseness in the wording of a pretrial order prevents
any possible claim of misapprehension of the procedural effect or requirements of the court's
ruling.

The motion in Limine is also advantageous to utilize if an attorney doesn't want a privilege
invoked to be alluded to or mentioned at trial. One case demonstrates just this. In Burdick v.
York Oil Co., the attorney made numerous and improper references to opposing counsel using
privilege to protect information in an effort to prejudice the jury. There was a pre-trial motion
prohibiting this, and therefore, reversible error.

Motions in Limine can also be used to address matters that adversely affect the credibility or
character of a party. In the context of prior law suits, the motion can be used to prevent mention
of those law suits. Attorneys will attempt to create suspicion in the jurors' minds that the plaintiff
has fabricated or exaggerated his claim against the other party, by skillfully disclosing that the
plaintiff has on prior occasions filed other lawsuits and claims for injuries. Such prior claims do
not have to be relevant to the case, but if presented with sufficient skill, it can mislead the jury to
believe that the plaintiff is nothing more than a profession claimant. Use of the motion for this
purpose was illustrated in one case involving a claim that sought workmen's compensation for a
totally disabling back injury the plaintiff received while working on the job. In McClintock v.
Travelers Ins. Co., there was a pre-trial order issued on a motion in Limine to refrain from any
reference at trial to prior law suits initiated by the plaintiff. Despite the pre-trial order, counsel
for the defense elicited in testimony before the jury a history of the plaintiff's minor injuries and
claims dating back some thirty-five years. The appellate court held that conduct of this nature
must have so prejudiced the jurors that they would have had difficulty rejecting the belief that the
plaintiff was a "litigation-prone" individual.

The motion also is important with regards to reference of prior criminal records. According to
the traditional rule, a judgment of conviction in a criminal prosecution is not admissible in a civil
case as evidence of facts on which the civil case is based. Mention at trial by counsel of an
inadmissible conviction might constitute a very powerful tool to influence the juror's attitudes
toward the formerly convicted party. That is why the motion in Limine regarding this matter may
attribute to the success of your case.

This list isn't exhaustive. There are almost a limited amount of contexts to which to use the
motion. The key is to remember to identify the vulnerable evidentiary areas and try to use
motion in Limine to your advantage.

There are numerous cases that deal with using these motions to authenticate evidence, but there
are two I wanted to point out in particular. The first one conveys the general use and meaning of
the motion in Limine to authenticate, and the second demonstrates that the motion in Limine may
not be relied upon as a final ruling.

The first case is United States v. Scott,  where the party used a motion in Limine to authenticate
and admit evidence under self-authentication prior to commencing trial. Again, this just
demonstrates the general use of the motion. The second case lends a lesson of caution when
proceeding to trial after a favorable in Limine ruling. In Leigh v. Schwartz, the defense counsel
made a motion in Limine to prevent evidence of past or pending claims against his client. The
defense counsel had acquiring a favorable ruling on the matter. Unfortunately for the defense
counsel and his client, he later opened the door for evidence of past and pending claims through
evidence that he presented himself. Counsel effectively waived the preclusion of any such
evidence that he had recently acquired in the motion in Limine. The take-away here is be
cautious of evidence that you present and make sure that it does not open the door back up to any
evidence that you have had successfully precluded through a motion in Limine.

29A Am. Jur. 2d Evidence § 1053.

Id.

Id.

United States v. Brooks, 715 F.3d 1069, 1078 (8th Cir. 2013).

Id. at 1078.

O'Toole v. Northrop Grumman Corporation, 499 F. 3d 1218, 1225 (10th Cir. 2007).

Fenner, Michael G., The Admissibility of Web-Based Evidence. 47 Creighton L. Rev. 63 (2013).

Id. at 85-86.

Id.  See Netscape Commc'ns v. ValueClock, Inc., 707 F. Supp. 2d 640 (E.D. Va. 2010).

33 Am. J. Trial Advoc. 1, 4 (2009).

Craver, Charles B., The Negotiation Process, 27 Am. J. Trial Advoc. 271 (2003).

Id. at 273-276.

Id.

Id.  at 276-80.

Id.  at 276-80.

Id.

Id.

Craver, Charles B., The Negotiation Process, 27 Am. J. Trial Advoc. 271, 292 (2003).

Id. at 292-94

Id. at 302-03.

Id.  at 303-08.

Id.  at 308-10.

Id.

Id.

Rapping, Jonathan, Evidence Blocking: How the Defense Can Define the Legal Landscape at
Trial,  33 Am. J. Trial Advoc. 1 (2009).

Id.

Id.

Id.

Id.
Mauet, Thomas A., Fundamentals of Trial Techniques, 335-50 (Little, Brown, & Co. et. al. eds.,
3rd ed. 1992).

Id.

Id.  at 348.

Id. at 360.

Id.

Id.

Def. Against a Prima Facie Case §1, §1.1-1.22 (Rev. 2016), available at Westlaw.

Shelson, James W., Mississippi Chancery Practice, § 31:22 (2015 ed.), available at Westlaw.

Carlson, Ronald L., ET AL., Trial Handbook for Georgia Lawyers. § 9:2. (2015
ed.), available  at Westlaw.

Presumptions and Facts Established Without Formal Proof, PGEV MA-CLE 2-1 (2015).

Biax Corporation v. Nvidia Corp., 271 F.R.D. 200 (D. Colo. 2010).

20 Am. Jur. Trials 441 (1973).

Id.

Id.

Id.

Id.

Id.

20 Am. Jur. Trials 441 (1973).

Id.

Id.

Id.

Id. at § 4. (citing  Jefferson v. Lyon Sheet Metal Works, 376 S.W.3d 37 (Mo. Ct. App. E.D. 2012),
reh'g and/or transfer denied, (June 28, 2012)).
Id.  at § 12.

Id.  at § 17.

Id. at §17 (citing Parmelee Transp. Co. v. Keeshin, 292 F.2d 794 (7th Cir. 1961)).

20 Am. Jur. Trials 441, §17 (1973), (citing Fid. & Cas. Co. of New York v. Frank, 227 F. Supp.
948 (D. Conn. 1964)).

Id. at §17 (citing Parmelee Transp. Co.).

Id. (citing Burdick v. York Oil Co., 364 S.W.2d 766, 767 (Tex. Civ. App. 1963), writ refused
NRE  (May 15, 1963)).

Id.

Id.  (citing  McClintock v. Travelers Ins. Co., 393 S.W.2d 421, 422 (Tex. Civ. App. 1965), writ
refused NRE (Nov. 10, 1965)).

Id.

Id. at §34.

United States v. Scott, No. 2:13CR164, 2014 WL 2808802, at 3 (E.D. Va. June 20, 2014).

Leigh v. Schwartz, No. CV116018306S, 2016 WL 1315611, at 1 (Conn. Super. Ct. Mar. 7,

2016).

Id.