April 2014

COMMUNIQUÉ is printed and mailed to all CCBA members. View full-issue (PDF): 2014_04_Communique-web

Article: “How to Prepare for Your First Trial” by Howard J. Russell, Esq.
Article: “Making the Most of Motions In Limine” by Lindsay Demaree, Esq. and Jennifer K. Hostetler, Esq.

How to Prepare for Your First Trial

By Howard J. Russell, Esq.

© 2014 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (April 2014, Vol. 35, No. 4). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

Prior to 2002, the extent of my “trial preparation” consisted of rehearsing pre-scripted questions for a mock trial competition. When asked to second chair a commercial dispute in federal court, however, I quickly learned that my resume-building mock trial experience had prepared me for this moment about as much as watching reruns of Law & Order. Law school advocacy programs and captivating closing arguments delivered by Sam Waterston are certainly helpful tools, but both are closed-universe dramatizations of what every trial lawyer imagines his or her courtroom experience will be. Preparing for your first real trial is, however, both a stressful and an exciting attempt to expect the unexpected.

The opening statement: introduce the message
We learn the importance of a coherent theme in our early childhood years. From using our imaginations as toddlers to writing our first elementary school essays, we create stories from the moment we learn what a story is. Writing at any level typically requires a cohesive and consistent theme throughout the narrative. Preparing for your first trial is no different. Before you draft your first question or develop your first PowerPoint slide, you need to be able to complete this sentence: “My client should prevail in this case because . . . .” How you complete that sentence is your theory of the case, and from that your theme is developed.

A jury trial is a type of narrative. The attorney is both author and narrator and relies upon witness testimony and documentary evidence as the building blocks for the culminating chapter known as the closing argument. Whether you are preparing an opening statement, outlining cross examination questions, or simply arguing the appropriate jury instructions to a judge, your theme should always be clear. By the end of the trial, both the judge and jury should come to a singular conclusion: your client should prevail because, accepting as true the basic premise and theme you have focused on for days or weeks, there can be no other outcome. A successful trial attorney is not always one the jury likes the most or who represents the more likeable client. A successful trial attorney is one who can convince the jury that his or her view of the legal and factual issues in the case is the more reasonable one.

When developing a theme, brainstorming is vital. Chances are that your first trial will be alongside a more seasoned trial attorney and will involve extensive collaboration. In the rare circumstance you are venturing into a trial for the first time with no one to assist, use your colleagues, staff members, law school classmates, family, friends, hair stylist, or whomever else you trust as a sounding board for ideas (while, of course, staying loyal to your ethical duty of confidentiality to your client). Brilliant case theories may quickly be discarded when a layperson points out an inherently flawed logic on which the theory relied or stares blankly without comprehension because the message is just too complicated.
Your theme should neither be “dumbed down” for the jury nor should it be trite. On the other hand, simplicity in communication is a virtue if you can accomplish it without diluting or undermining the message. Maxims are a starting point, but apply the facts of your case. “A picture is worth a thousand words” is a fine opening line for a case in which just a few pictures will speak volumes about an important aspect of your case. However, unless you can actually coax a thousand words of narrative out of each of those few pictures, your theme will, by the end of the case, seem overextended and the jury’s expectations will be disappointed.

The opening statement should keep you on track to avoid overselling a weak theme. It should not include argument and it should not mention that hotly-contested piece of evidence that the judge has yet to rule on. The opening statement is your first and best opportunity to lay out your theme and theory for the jury. If, in that opening statement, you can reference the vital pieces of testimony and most important documents that you reasonably expect will be presented as evidence and logically tie them into your larger theme, you’re on the right path.

Direct examination: tell your story
One of the least exciting yet most important aspects of trial preparation is to develop thorough direct examinations, which is assisted by preparing your witnesses accordingly. Direct examination is not considered “sexy.” Probably few people remember the scene in A Few Good Men in which Noah Wyle’s character describes, during a direct examination, the circumstances under which he might be subject to a Code Red. Anyone who has seen the film vividly remembers, however, Tom Cruise’s intense cross-examination of Jack Nicholson’s character and damning admission on the stand. Nevertheless, direct examination is the primary component of the trial attorney’s case-in-chief. It is the opportunity to develop your theory and emphasize your theme, largely on your terms. In many cases, you control the witnesses or, at the very least, have had cordial enough dealings with them that you have a comfort level with how the testimony will play out. Building your narrative through direct examination is a delicate balance between sounding overly rehearsed and being too casual, such that the jury becomes disengaged.

Preparing an effective direct examination is much more difficult than one might expect, particularly for questioning non-party fact witnesses. While experts, law enforcement personnel, or corporate representatives may testify with some regularity and be familiar enough with the process to understand the cues and hints in your questions, many fact witnesses will be new to the experience and likely nervous. The goal then is to draft a line of questioning that is not objectionable as leading and complete enough to build effectively on the theory of your case. For inexperienced or nervous witnesses, keywords and signals are sometimes helpful to keep the testimony on track and effective. It is equally important to be flexible enough to re-word or re-order questions if a witness stumbles and gets off track regarding the intended message. Ultimately, the examination needs to allow the witness to tell his or her story, while simultaneously developing yours.

Cross examination: beware the dreaded open-ended question
Every trial attorney dreams of that defining moment when a case is won with a “silver bullet” cross-examination question. As attorneys, we are often more interested in finding a weakness in our opponent’s case than in shoring up our own, but only because it is very difficult not to salivate over the thought of changing the course of a trial by eliciting a devastating “yes” or “no” answer from an adverse witness. The desire to achieve complete victory at the opponent’s expense, however, along with Hollywood’s romanticized portrayal of trial attorneys, can be dangerous. All trial attorneys, even the most seasoned, risk leaving a potentially-damaging question open ended enough that the witness can dodge it with a well-crafted answer, which ends up being equally damaging to your case.

The solution is to rely on questions to which you know the answer or are confident will lead to the desired answer. There are two reasons depositions are a vital tool in the discovery process. The first is, obviously, the discovery of information. The second and equally important one is early preparation of cross-examination questions for trial. A deposition transcript does not carry with it any guarantee that the witness will not change his or her testimony at trial, but at least it provides a secondary method to introduce helpful testimony into evidence. Any witness (even your own) can take a 180 degree turn in front of the jury. Being able to refer a witness to his or her prior testimony, and perhaps establish that the witness now completely lacks credibility, is a rare gift in the course of trial. Preparing questions to which you are already certain of the answer or that can at least help establish your case theory by admitting the answer through deposition testimony if the witness changes his or her story on the stand is key to effective cross examination.

Brevity is equally important whenever possible. A very well-respected trial attorney once asked my opinion of whether opposing counsel had ever “filleted” someone on the stand. It was an interesting way to describe the process of cross examination. However, there is a flaw in assuming that eviscerating every witness on cross examination is necessary to be an effective trial attorney. There are certainly times when a cross examination will be extensive, such as when an expert is intricately questioned on each assumption serving the basis of his opinion. More often than not, however, it is just as effective to elicit two or three important points from the witness that may make the remainder of the witness’s testimony largely forgettable if proved. The same point applies: prepare to tell your story and remain consistent to your theme. The less time you dedicate to “filleting” the other side’s witnesses, the more the jury will believe that you are unconcerned with what those witnesses have to say.

The X factor: believe that any jury can be a good jury
No trial attorney can prepare for the makeup of the jury. Perhaps you will have the benefit of a jury questionnaire to identify potential jurors who may (at least on paper) be particularly favorable or detrimental to your case. Once voir dire commences, you will quickly learn that any expectations based on how a juror answered a cold questionnaire were formed in vain. Jurors are people who are much more complex than what a questionnaire may reveal. If you prepare for a certain jury makeup, you will be sorely disappointed and will spend your first days of trial trying to revise your case strategy to address this unexpected jury.

The better approach is to focus your energy on preparing for any jury. If you have a solid and workable theme, have developed a plan to build your narrative efficiently through your own case-in-chief, and have taken the time to understand the nuances of the case such that you can anticipate the weaknesses of your case, then just about any jury has the potential to be convinced of your point of view. Over the years, I have been thoroughly impressed by the interest jurors take in our civil justice system and how attentive they are even if they exhibited hesitance during voir dire about their ability to serve.
There is no adequate way to prepare for what the jury will be. The best preparation is to minimize concerns about what the jury “could be,” and instead dedicate your time to preparing your case with your own unique point of view. The only way to be truly prepared is to develop your case in such a way that any juror, regardless of preconceptions or prejudices, can be convinced of your theory.

Closing arguments: be a facilitator, not a dictator
Over the years, I have been honored and privileged to practice with extremely talented trial attorneys. One of those lawyers once told me, “You can’t win a case in closing argument, but you can sure as hell lose it.” The closing argument is your opportunity to bring the case together and connect the evidence the jury heard to the theme you cogently delivered in the opening statement. Closing argument should not be considered an opportunity to salvage a case that you failed to lay the groundwork for during your case-in-chief or to explain away that witness who outsmarted you on cross examination. If you have prepared adequately and focused on the big picture theme throughout the trial, the closing argument is a golden opportunity to deliver a brief, concise, and persuasive roadmap the jury can use to find in your favor. Do not overlook the fact that the jurors will be fatigued at this point and are ready to start deliberations. Telling the jurors how they must decide the case could alienate them. In contrast, you should show the jurors how the evidence you have presented leads to the necessary conclusion that you should prevail.

Conclusion: expect the unexpected
The most effective way to prepare for your first trial is to appreciate, no matter how much you prepare, there will be unforeseen hurdles to overcome throughout the trial. Rulings on motions in limine will require last minute changes to your opening statement and a need to re-work the direct examination of your key witness. A juror during voir dire may make such an outrageous and inflammatory comment contrary to your client’s interests that you will be unable to imagine the jurors possibly keeping open minds going forward. A witness may go rogue during trial, forcing you to consider abandoning entirely your primary theory. If you have prepared for the trial by understanding what your ultimate goal is, by developing an effective and overarching theme to convince the jury of your point of view, and by focusing on the bigger picture, rather than hoping that each witness examination and offer of proof will go flawlessly, then your first foray as a trial attorney should be a partly rewarding, partly terrifying, and hopefully a successful endeavor.

Howard J. Russell is the managing partner for the Las Vegas office of Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC. He is a graduate of the University of Georgia School of Law and is licensed to practice in Nevada, Georgia, and Massachusetts. Over the past decade, he has tried cases in several states involving a wide range of claims, including product liability, premises liability, nightclub altercations, transportation, construction, and insurance coverage.

Making the Most of Motions In Limine

By Lindsay Demaree, Esq. and Jennifer K. Hostetler, Esq.

© 2014 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (April 2014, Vol. 35, No. 4). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

In its most basic form, a motion in limine is a motion that seeks to exclude prejudicial, irrelevant, or otherwise inadmissible evidence before trial begins. Parties today often use such motions to request and obtain relief beyond the mere exclusion of evidence. For example, motions in limine have been used to limit arguments of counsel, attack experts, and pre-admit specific evidence. Rulings on these issues have the potential to make or break a case, so motions in limine become a valuable trial tool. Like any tool, you should first know how to use motions in limine and for what purpose.

State and federal rules regarding motions in limine
Motions in limine are commonly filed in both state and federal courts in Nevada. Each forum has local rules regarding the filing of motions in limine, which advise the parties as to when these motions must be filed and whether the parties are required to make efforts to informally resolve the matter prior to filing. Familiarity with the court’s rules governing motions in limine will ensure that your motion is timely heard prior to trial and not denied for noncompliance with the rules.

While the Nevada Rules of Civil Procedure are silent as to motions in limine, the Nevada Supreme Court, has implicitly approved their use by finding the disposition of a motion in limine to be within the district court’s broad discretionary power concerning rulings on the admissibility of evidence. See State ex rel. Dep’t. of Highways v. Nev. Aggregates & Asphalt Co., 92 Nev. 370, 376 (1976); Nev. Civil Practice Manual § 18.02(1). Additionally, in the Eighth Judicial District Court in Clark County, motions in limine are expressly permitted under EDCR 2.47.

EDCR 2.47 provides that all motions in limine must be in writing and filed not less than 45 days prior to the date set for trial, unless otherwise provided for in an order of the court. The motion must be heard at least 14 days prior to trial, unless otherwise ordered by the court. As set forth in EDCR 2.47(a), the court has discretion to refuse to consider any motion in limine that is not timely filed or noticed. This includes refusing to sign orders shortening time and refusing to hear any oral motions in limine.

Subsection (b) to EDCR 2.47 provides that motions in limine may not be filed unless an unsworn declaration under penalty of perjury or affidavit of the moving counsel is attached to the motion “setting forth that after a conference or a good-faith effort to confer, counsel have been unable to resolve the matter satisfactorily.” The rule defines a “conference” as a personal or telephone conference between or among counsel. Counsel for the moving party must set forth the following in declaration or affidavit:

  • The attempts moving counsel made to resolve the matter
  • The issues that were resolved as result of the conference
  • The issues that remain unresolved as a result of the conference
  • Explanation as to why a resolution could not be reached
  • To the extent a personal or telephone conference was not possible, the reasons why the conference did not occur

Like the Nevada Rules of Civil Procedure, neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence refer to motions in limine. However, the United States Supreme Court has held that trial judges are authorized to rule on motions in limine pursuant to their authority to manage trials. See Luce v. U.S., 469 U.S. 38, 41 n.4 (1984) (citing Fed. R. Evid. 103(c) (providing that trial should be conducted so as to “prevent inadmissible evidence from being suggested to the jury by any means”)).

The Local Rules of Practice for the U.S. District Court in Nevada further authorize the use of motions in limine. LR 16-3(b) provides that “[u]nless otherwise ordered by the Court, motions in limine are due thirty (30) days prior to trial.” The rule requires opposition briefs to be filed and served and the motion submitted for decision 14 days thereafter. Reply memorandums are not permitted without leave of the court.

Unlike the Eighth Judicial District Court’s local rule, the Local Rules of Practice for the U.S. District Court in Nevada do not require the parties to meet and confer before filing a motion in limine in federal court. Judge Miranda M. Du’s Civil Standing Order No. 1 and Chief Judge Gloria Navarro’s Chamber Practices, including her Order Regarding Trial, make no mention of the parties’ meet and confer obligations before filing a motion in limine in their respective courts. Nevertheless, a meet and confer is still good practice. It may provide insight into an adversary’s arguments and allows counsel to determine whether there are any issues that can be resolved without an unnecessary motion.

Choosing issues to raise in motions in limine
To decide what issues to raise in a motion in limine, counsel should carefully consider the motion’s purpose, the case at hand, and the court’s time. Motions in limine are valuable because they allow the court to resolve evidentiary battles before trial begins, when there is time to review the relevant legal authorities and the evidence at issue. If it is clear that the parties disagree on whether a key piece of evidence is admissible, do not wait until the jury is seated to raise the issue—move on the issue early. Not only will this strategy give the court a “heads up” on the issue’s importance, but a pretrial decision will provide counsel time to tailor their trial strategy to the court’s decision.

Conversely, avoid inundating the court with motions in limine that raise simple evidentiary objections. Motions that generically request the court to “exclude irrelevant evidence” or enforce some other evidentiary rule waste time and divert attention from motions addressing substantive evidentiary issues. The knee-jerk “omnibus” motion in limine often falls into this category. This motion typically includes generic requests to exclude clearly proscribed evidence and argument like appeals to the community conscious, improper golden rules, and insurance and confidential settlement negotiations, among other things. While these issues may be pivotal to some cases, many times they are not necessary. Similarly, scrutinize potential motions to exclude experts and prejudicial, confusing, or misleading evidence. Ask whether such motions raise complex or critical issues that warrant a pretrial briefing or if the issue can be quickly addressed during trial.

Finally, while motions in limine can address a variety of evidentiary issues that affect a party’s ability to prove her case, they are not backdoor summary judgment motions. See, e.g., Goodman v. Las Vegas Metro. Police Dep’t, 2013 WL 4006159 (D. Nev. Aug. 2, 2013) (“[A] motion in limine should not be used to resolve factual disputes or weigh evidence.”); Badger v. Wal-Mart Stores, Inc., Case No. 2:11-CV-1609-KJD-CWH, 2013 WL 3297084 (D. Nev. June 28, 2013) (“[W]here the motion in limine is no more than a rephrased summary-judgment motion, the motion should not be considered.” (internal quotations and citation omitted)); cf. Bronneke v. Rutherford, 120 Nev. 230, 234 (2004) (holding a motion in limine opposition addressing legal standard for chiropractors could not be characterized as a summary judgment motion). Summary judgment motions have specific timing requirements and procedural protections, see, e.g., Fed. R. Civ. P. 56; NRCP 56, which means the court has no choice but to reject a motion in limine that masks a request for summary judgment (or an attempt to rehash a failed summary judgment argument).

Deciding how many motions in limine to file
There is no formula for determining how many motions in limine to file. As a practical matter, the size of the case and the client’s budget will often limit the number of motions filed, as the time to brief and argue numerous motions can be costly. The court’s time is another consideration. Clark County’s state and federal dockets are overwhelming. Dozens of nonspecific motions in limine that raise simple objections may annoy the court and take both the court’s and one’s attention away from other important evidentiary issues. On the other hand, targeted motions on key evidentiary issues can save time during trial. These motions also provide an opportunity to refresh the court on the central issues of the case, elicit opposing counsel’s arguments and themes for trial, and obtain early evidentiary rulings that can influence trial preparations.

Motions in limine are important tools for every litigator preparing for trial. Before filing a motion in limine, careful consideration should be given to the forum of the case, the local rules of that forum, and the key evidentiary issues that should be resolved prior to trial. While a ruling in your favor on the exclusion of evidence may not win the case, it will make the presentment of evidence at trial easier for you and the court.

Lindsay Demaree is a litigation associate at Lewis Roca Rothgerber LLP and practices in the areas of general litigation and appeals.

Jennifer K. Hostetler is a litigation associate at Lewis Roca Rothgerber LLP and practices in the areas of employment law and business litigation.

Special thanks is given to Judge Philip M. Pro, Lindsay Hansen, and Kara Rickey for their invaluable insights.