Using Motions in Limine at Trial to Effectively Preserve Appeal Issues
By Micah S. Echols

During a recent non-jury trial, the Judge asked us why we were filing so many motions in limine. The Judge did not wait for our response, but it was clear from the question that the prevailing belief was that motions in limine should only be used in jury trials to prevent the jury from seeing prejudicial evidence. Although motions in limine can wisely be used to exclude large quantities of irrelevant documents and witness testimony in non-jury trials, the main purpose behind filing the motions in limine in our non-jury trial was to preserve error for the expected appeal.
In preparing our motions in limine, we relied upon Richmond v. State, 118 Nev. 924, 59 P.3d 1249 (2002). Richmond holds that when an evidentiary objection has been fully briefed in a motion in limine, there is no need to make a contemporaneous objection during trial to preserve the issue for appeal. With dozens of witnesses, multiple expert witnesses, and hundreds of exhibits, we were content to have the Judge’s rulings on the motions in limine so that we could focus on the numerous other tasks, knowing that our position in the motions had been preserved for appeal, as set forth in Richmond.

Shortly after the conclusion of our trial, the Nevada Supreme Court issued BMW v. Roth, 127 Nev. Adv. Op. No. 11 (Apr. 14, 2011). Roth retreated from the Richmond standard and now requires that a contemporaneous objection be made during trial if the opposing party has violated the terms of the order in limine. The court reasoned that the violation of an order in limine creates a new error that must be objected to. After we reviewed the specific language in the orders in limine from our case and recalled the testimony and arguments, we realized that our Judge had diligently made all the parties abide by the orders in limine. So, we thankfully did not have a Roth problem for our appeal in preserving issues. But, we had learned a valuable lesson. This article discusses the policy considerations and the strict requirements of Richmond, as well as the policy considerations and practical application of Roth to ensure that motions in limine operate effectively to preserve appeal issues.

Policy considerations and strict requirements of Richmond
The Nevada Supreme Court recounted its prior rulings when it held in Richmond that there is no need to make a contemporaneous objection during trial to preserve the issue for appeal, when an evidentiary objection has been fully briefed in a motion in limine. The court first discussed its prior ruling in Daly v. State, 99 Nev. 564, 665 P.2d 798 (1983). In Daly, the court ruled very similar to the current Roth holding and concluded that a motion in limine without further objection is not sufficient to preserve an issue for appeal when the terms of the order in limine are violated and there is no contemporaneous objection.

The court then commented upon its ruling in Staude v. State, 112 Nev. 1, 908 P.2d 1373 (1996). Staude involved a motion in limine that was denied in a first trial to exclude evidence of a prior conviction. Due to a mistrial, there was a second trial in which the motion in limine was not renewed. On appeal, the Supreme Court ruled that a ruling on a motion in limine is only advisory, and there must be a further objection at the time the objected-to evidence is actually introduced. So, the issue of the prior conviction was waived on appeal.

Finally, the court decided Rice v. State, 113 Nev. 1300, 949 P.2d 262 (1997) in which a motion in limine was granted to exclude the victim’s cause of death and injuries. However, after hearing the State’s expert testify outside the presence of the jury, the trial court allowed evidence on the victim’s cause of death, but excluded evidence on the victim’s injuries. Even though the State mentioned the victim’s injuries in opening statements, there was no objection. So, the Supreme Court ruled that the issue was waived on appeal for failure to object.

The facts of Richmond involved the denial of a motion in limine dealing with the scope of allowable testimony that was later not objected to at the time the witness testified at trial. In reaching its holding, the Supreme Court considered the policy arguments that (1) it wastes the court’s time for counsel to renew all objections at trial; (2) motions in limine serve no purpose if they cannot preserve issues for appeal; and (3) requiring a defense attorney to continually object during trial would create prejudice in front of the jury. The Supreme Court then considered a variety of federal cases addressing the issue and noted that the Federal Circuit Courts are split on whether a contemporaneous objection is needed after a ruling on a motion in limine.

After considering the policy arguments and the holdings of the federal cases, the Supreme Court adopted the Ninth Circuit rule that when the substance of the motion in limine has been thoroughly explored during the hearing, and the trial court’s ruling on the admissibility of evidence is explicit and definitive, no further action is necessary to preserve the issue for appeal. The court adopted the Ninth Circuit’s reasoning, consistent with this rule, that motions in limine would avoid cluttering up the trial with sidebar conferences and arguments made outside the presence of the jury. But, the Richmond rule did not make the distinction as to whether the order in limine was violated at the time of trial, which appears to be at least a factor already present in the cases leading up to and including Richmond, but just not clearly analyzed.

Policy considerations and practical application of Roth
The holding of Roth did not overrule Richmond, but Roth reconciled the various cases previously decided by the Supreme Court into a universal rule. In fact, the court noted that Richmond failed to distinguish cases in which there was a violation of the order in limine. As in the facts of Richmond, since the order in limine was in harmony with the ruling at the time of trial dealing with the scope of allowable testimony, the order in limine would be sufficient under Roth to preserve the issues on appeal without a contemporaneous objection at trial. But, if the terms of the order in limine are violated during trial, there must be a contemporaneous objection to preserve the new error.

The Supreme Court’s adoption of the Roth exception was motivated in part by the court’s previous ruling in Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008), which considered most unobjected-to instances of attorney misconduct as waived on appeal. The underlying policy of both Roth and Lioce that require contemporaneous objections when there is perceived error gives the trial judge an opportunity to provide a curative instruction if needed. Otherwise, counsel can sit idly by without objecting to violations of an order in limine, or attorney misconduct, hoping that if there is an unfavorable jury verdict, a new trial will be granted. In the end, Roth promotes judicial economy by limiting the grounds for new trials, especially under the facts of Roth where the trial lasted almost a month.

Gratefully, we did not have a Roth problem with our trial, and the appeal issues were preserved in the orders in limine from our case. But, in the next trial, we will know that we cannot just forget about the orders in limine after they are entered. Instead, we will need to be aware and object if any of the evidence or testimony violates the orders in limine.

Conclusion
Using motions in limine to limit irrelevant or prejudicial evidence and testimony can be a useful tool in both jury and non-jury trials. However, the rule expressed in Richmond that an order in limine preserves issues for appeal without any regard for what happens during the course of the trial, is no longer entirely accurate. The Supreme Court has clarified in Roth that when the evidence presented at trial is not consistent with the orders in limine, there needs to be a contemporaneous objection based upon the new error. Otherwise, the error is not preserved for appeal. But, if the evidence presented at trial is consistent with the orders in limine, no new objection is needed. And, any error set forth in the orders in limine is preserved for appeal.

In order to effectively use motions in limine to preserve appeal issues, keep in mind that even extensive and detailed motion in limine briefing can result in a waiver of issues on appeal if contemporaneous objections are not made when the order in limine is violated during the course of the trial.

This e-mail address is being protected from spam bots, you need JavaScript enabled to view it is an attorney at Marquis Aurbach Coffing in Las Vegas and can be reached at (702) 207-6087. Mr. Echols focuses his practice on commercial litigation and civil appeals.

Keeping it Real: Connecting with the Jury in a Digital Age
By Mark E. Ferrario and Tami D. Cowden

In our wired courtrooms of today, attorneys have many options for enhanced presentation of critical information at trial. The days when attorneys had to choose between shuffling multiple copies of documentary exhibits and juggling huge blown up posters of those documents are gone. Now, key phrases can be highlighted on screen. Once, deposition testimony of unavailable witnesses had to be laboriously read into the record, with an attendant risk of sending jurors into a somnolent haze. Now, video depositions may be played for the jury. And today, lawyers can even present computer-generated exhibits, such as animated re-enactments, to help the facts unfold before the jurors’ eyes.

But not every case—or every lawyer—is suited for high tech presentations. The ultimate goal of a good trial attorney is to make a connection with the fact finder. If technology gets in the way of that connection, then it will not matter how many bells and whistles you employed in your case presentation. The jury won’t be paying any attention.

Rather than assume that more technology is better, give careful consideration to the following factors:

Will trial technology actually enhance the presentation of evidence?
Just because a courtroom is wired for electronic displays does not mean that the technology must be employed. Some issues are more suited for visual displays than others. If a case boils down to a test of credibility between parties, then the trial presentation needs to be focused on presenting the client in the best possible light. Slick technology might prove to be nothing more than a distraction in such a case.

Visual presentations work best when there is a reason for the fact finder to actually see evidence, as opposed to hearing testimony alone. Accident cases involving physical conditions will likely be well served with depictions of those conditions or with reconstruction animation. Contract disputes over the proper interpretation of an agreement can benefit from split screen comparisons of provisions to highlight important distinctions. Lengthy segments of deposition testimony will hold the jurors’ attention better if presented on video.

However, remember that less is likely more. The goal of the enhanced presentation is to emphasize key factors in your case. Few cases will benefit from having every word on every document, or even every document, displayed to the jury on screen.

Will trial technology actually enhance your presentation?
Trial technology is supposed to assist the advocate in reaching the audience. An attorney who is generally skilled at creating a rapport when speaking with a jury may find that technology actually creates a barrier. Accordingly, careful consideration of your own strengths is required. If you are a dynamic speaker, capable of evoking the desired emotions from the fact finder, then enhanced presentation methods might compete with the pull of your own personality. You do not want to divert the fact finders’ attention from an impassioned argument with slides of documentary language or charts.

In contrast, a less energetic speaker might be helped by the additional punctuation offered by a power point presentation or other evidence display. But judicious use is still necessary. The entire presentation should not appear on screen. No one enjoys listening to a speaker read material from slides. The visual aids should highlight what the advocate says, not repeat it.

Additionally, avoid the temptation to include too much information simply because technology makes it so much easier. The jury still has to assimilate the evidence presented. Cull out the unnecessary, just as you would if using conventional methods of presentation.

Are you comfortable with the use of the technology?
There are few things worse for any audience than to be trapped in a presentation by someone who is overwhelmed by the technology. Even if you have staff or consultants assist in the preparation and on-site implementation, you personally must be wholly comfortable interacting with that technology. The time to practice these skills is before the trial, not during it.

Also, match the use of technology to your personal style. If you tend to prepare detailed outlines of witness examinations, or opening and closing arguments, then preparation of an orchestrated presentation that follows along the outline by highlighting key points may fit your style. But if you are stronger at improvised examination or argument, having a prearranged string of slides and video bites will only result in frustration for both you and the jury as you shuffle through the contents looking for the display to match a given point. This kind of speaker would benefit more from having an aide who can call up slides or video segments on demand. Just make sure both the speaker and the aide have called those specific slides by the same names, or risk making the jury wait each time while your assistant figures out exactly what you want.

Will trial technology actually enhance witness testimony?
Visual presentations will not replace witness testimony; at most, they can enhance that testimony. A well-planned and executed presentation can help to clarify key points in the information the witness is intended to present. However, a poorly executed presentation will only undermine the witness’s testimony.

In deciding whether technology should be used in conjunction with a witness’s testimony, counsel should first ask whether the points the witness must makes could be illuminated through the use of presentation technology. If the witness is recounting events, the introduction of demonstrative aids might merely prove distracting. In contrast, if the points to be covered by the witness could be clarified through drawings, graphs, photos, etc., then their use should be considered.

Next, however, counsel should consider whether the witness would be comfortable interacting with the technology. The witness should be familiar with highlighting portions of the photo, graph, or chart by available means, whether with the use of an on-screen curser, with a pointer, laser or otherwise, physically held by the witness, or through zooming in and out on key portions of the exhibit. The witness should also be accustomed to keeping pace with slides, making sure that the topic of the testimony matches the exhibit showing on screen.

Moreover, the witness should be actively involved with the preparation of the visual displays. Few things will lessen a witness’s credibility on direct examination more than an appearance of befuddlement due to being confronted with an unfamiliar drawing or chart.

Can you proceed if the technology fails?
Even the most up-to-date equipment can experience technical glitches, but court schedules usually cannot accommodate lengthy delays due to equipment failure. However, desirable the use of the technology may be, be sure to have a backup plan. That means making sure you have hard copies of exhibits, and perhaps even some sort of alterative technology. Overhead projectors or even document cameras may seem passé in comparison to the electronic documents that allow you to zoom in to key areas, but if the computer containing those electronic exhibits gets left behind in a taxi, you’ll be glad you thought ahead.

While technology has made it possible to offer more vivid presentations of evidence to a jury, it has not changed the fundamental principles of advocacy. Use trial technology as a means of presenting the client’s best case to the jury; do not use the client’s case as the means to present the latest trial technology.

Mark Ferrario, a Shareholder in the Las Vegas office of Greenberg Traurig, LLP, has been a trial attorney for over thirty years, and has even used trial technology a time or two. Tami Cowden, Of Counsel in the Las Vegas office of Greenberg Traurig, LLP, is usually amused by Ferrario’s interactions with technology.

Effective August 1, 2011, the United States District Court, District of Nevada, amended its Local Rules of Practice. A complete copy of the amended Local Rules, as well as a matrix showing the changes, and a red-lined version, can be found on the court’s Web site at www.nvd.uscourts.gov under the “Local Rules” link on the court’s home page. This article is intended to give an overview of some of the changes that will likely be of most importance to your practice. However, this is not an exhaustive list and I encourage you to review the amendments in their entirety.

Check your deadlines
In trying to be consistent with the recent amendments to the Federal Rules of Civil Procedure, the court has amended most of the filing deadlines in the Local Rules. Most of the deadlines in the former local rules that provided a 10-day deadline have been changed to 14 days. For example, the deadlines for such filings as objecting to a magistrate judge recommendation and filing a bill of costs has been changed from 10 days to 14 days. In addition, other filing deadlines were changed. One important change relates to filing oppositions and replies to motions under the amended Local Rules: a party now has 14 days to oppose a motion (instead of 15) and seven days to file a reply (instead of 11).

It is also important to note that the amended deadlines with respect to summary judgments are different from the time frames with respect to other motions. The amended rules provide that a party has 21 days to file an opposition to a motion for summary judgment filed pursuant to NRCP 56(b). Then, the movant has 14 days to file the reply.

Letter to court regarding status of ending motion
Under former Local Rule 7-6(b), a party was permitted to send a letter to the court 60 days after briefing was concluded on a motion to inquire as to the status of a decision. That rule still applies. However, the amended rules now provide that if no ruling has been issued within 120 days after the matter has been fully briefed, then counsel may send a letter to the chief judge, who “shall inquire of the Judge about the status of the matter.” The amended rule requires that copies of all such letters be served upon all other counsel and unrepresented parties.

Pro hac vice applications
Pro hac vice applications are addressed in Local Rule IA 10-2. There are some minor changes to the format of a pro hac vice application that should be reviewed. In addition, there are some substantive changes that are noteworthy. Previously, the verified petition filed by the attorney seeking admission had to simply state that the attorney was a member in good standing in the courts in which he or she was licensed to practice. Now, the petition must include a certificate from either the state bar or the highest court of the state in which the attorney is licensed to practice, certifying that the attorney is in good standing in that state.

In addition, with the application, an applicant is required to identify other cases in which the attorney had previously been admitted to practice in Nevada under the pro hac vice rules. Under the old rule, the attorney had to identify those cases not only for himself or herself personally, but also cases in which other members of his or her firm had been admitted under a pro hac vice application. Under the amendments, the application now focuses only on the specific attorney seeking admission, and not other members of that attorney’s firm.

Limited admission of emeritus pro bono attorneys
The amended rules include a new rule relating to pro bono attorneys in bankruptcy cases. Under Local Rule 1A 10-4, in bankruptcy cases, an inactive member of the bar (either Nevada or another state) may be certified as an emeritus pro bono attorney under Supreme Court Rule 49.2 to assist low income clients in the bankruptcy courts. The new rule sets forth the application process for an emeritus pro bono attorney to be admitted to practice in bankruptcy cases. The rule also specifically provides that the attorney may not receive any personal compensation for the representation.

Emergency motions
Local Rule 7-5 deals with ex parte and emergency motions. The amended rule clarifies the distinction between an ex parte motion and an emergency motion. For instance, the rule now provides that ex parte motions may only be made “for compelling reasons,” and cannot be made simply because the motion is unopposed or it is an emergency motion.

Motions requesting emergency relief must be entitled “Emergency Motion” and must be accompanied by an affidavit identifying: (1) the nature of the emergency; (2) the address and telephone numbers of the movant and all affected parties; and (3) a statement of the movant certifying that, after personal consultation and “sincere effort to do so,” the movant has been unable to resolve the matter without court action. The statement must also identify how the other party was notified of the motion or, if the other party was not notified, why it was not practicable to do so. If the nature of the emergency motion precludes consultation with the other party, the statement of counsel must include a “detailed description of the emergency” so that the Court may evaluate whether consultation was truly precluded.

Notice of related cases
The court has adopted a new rule relating to the notification to the court of related cases. Under Local Rule 7-2.1, a case is “related” if (1) both actions involve the same parties and are based on the same or similar claims; (2) both actions involve the same property, transaction, or event; (3) both actions involve similar questions of fact and the same question of law such that their assignment to the same judge would result in judicial efficiency; or (4) if the cases would “entail substantial duplication of labor” if the cases were heard by different judges.
Counsel who believe that an action may be related to another action is required to file a “Notice of Related Cases” with the court. The notice must set forth the title and number of each possibly related case, together with a brief statement of why they are related. The rule does not provide a specific deadline for when the Notice of Related Cases must be filed.

Paper copies
Former Local Rule 10-4 requires that one paper copy of all pleadings and other papers be filed with the court clerk. That rule has now been stricken. Thus, paper copies are no longer necessary.

Hyperlinked briefs
Local Rule 7-3 now provides that electronic documents may contain hyperlinks to other portions of the same document and to a location on the Internet that contains a source document for a citation. The amended rule clarifies that hyperlinks may not replace the standard citation format and that complete citations must still be included. Further, a hyperlink or a cite to which the document is linked is not considered part of the official record. Instead, the rule clarifies that hyperlinks in the above-referenced matter are simply for convenience.

In camera submissions and sealed documents
Local Rule l0-5, as amended, now provides that papers submitted for in camera inspection shall not be filed with the court, but shall be delivered to the chambers of the appropriate judge. A party who submits a document for in camera inspection then also must file a “Notice of In Camera Submission” to identify that the documents have been submitted for an in camera inspection.
In addition, under the amended rule, papers filed with the court under seal must be accompanied by a motion for leave to file those documents under seal. If approved, papers must state, on the first page, directly under the case number “FILED UNDER SEAL PURSUANT TO COURT ORDER DATED _______.”

Early neutral evaluation
The amendments to Local Rule 16-6 clarify the types of cases that are subject to the Early Neutral Evaluation Program. The amended rule defines what constitutes an “employment discrimination action” by referencing specific federal statutes that fall within that definition. The amendment also modifies various deadlines in the rule with respect to filings under the Early Neutral Evaluation Program.

Extensions
Local Rule 26.4 addresses extensions of scheduled deadlines. The amended rules now specifically requires a showing of “good cause” in applications for extensions. Furthermore, the amended rule also requires that any request for extension must be received by the Court no later than 21 days before the deadline expires.

Patent cases
The amended Local Rules create a new rule for patent practice. The new rule is found in Local Rule 16.1 through Local Rule 16.21. The new rules are much too extensive to discuss in this article. However, the amended rule was created to comply with the Federal Rules of Civil Procedure dealing with patent cases and 35 U.S.C. § 271.

Criminal rules
The amended rules also make changes to the Local Rules of Criminal Practice. Those changes are beyond the scope of this article, but criminal practitioners should familiarize themselves with those amendments.

Conclusion
In sum, the amendments to the local rules are generally of the “clean up” variety. However, while those amendments will likely not dramatically affect how we go about practicing law in federal court in Nevada, they will affect deadlines and other ministerial aspects of practicing in federal court. Therefore, you are encouraged to review the full set of amendments and modify your internal procedures accordingly.

Paul Georgeson is a partner at the firm of McDonald Carano Wilson and practices primarily in commercial litigation and appellate law. He is also a Lawyer Representative to the United States District Court, District of Nevada.