Category Archives: Orders in Limine

Orders in limine regarding prejudicial issues

A very good trial lawyer recently asked other plaintiff lawyers about an issue that I think is worth talking about. His client was on a motorcycle and the defendant admitted liability His inquiry was about asking for a pre tial  order that would say "the defendants and their counsel are ordered not to testify, present evidence, argue, or imply that plaintiff has any fault in this matter, or that plaintiffs’ damages should be less because plaintiff was injured while on a motorcycle" This is a good question worth discussing.

My view point about the order regarding the motorcycle was this. Whether spoken or unspoken there are those who will feel motorcycles are dangerous. Telling them they aren’t or ordering them to not believe that is a total waste of time. Therefore, I believe you have to explore this in voir dire including (1) life experiences involving motorcycles that the juror has an attitude about (2) good and bad experiences with motorcycles etc.

While you can ask and may obtain an in limine order the issue doesn’t go away and you still have to deal with the issue, so the question is how do you, on the one hand, get an order prohibiting defendant from suggesting directly or indirectly it is negligent to drive a motorcycle and, on the other hand, talk about it in voir dire? If you are going to apply for some kind order pre trial, and I’m not sure I would, I recommend you don’t ask for an limine order that defense counsel is prohibited etc. rather, I would ask instead that the court give a preliminary instruction to the jury before lawyer voir dire "that plaintiff does not have any fault in this matter, or that plaintiffs’ damages should be less because plaintiff was injured while on a motorcycle." (your language)

To put it another way, you can instruct people to ignore their bias, their life experiences and their values, but it is a waste of time. Instead you need to have an open discussion about these issues and either reframe your case so it is different then what they are biased about or get rid of them.

Another possible way of dealing with the reality of motorcycle bias is a preliminary written question – very simple and brief, but I suggest you have to deal with it. Like a bad smell in the room, you can’t ignore it in my view. Instead you need to talk openly about it. But, every lawyer has a different way of dealing with issues. 

Whether I am right or not, finding the right response is worth thinking about.