State Court Motion in Limine - Arizona

PLAINTIFF'S/DEFENDANT'S MOTION IN LIMINE

(State of Arizona — Superior Court)

TABLE OF CONTENTS

1. Caption
2. Notice of Motion and Hearing
3. Motion in Limine

4. Memorandum of Points and Authorities
   4.1 Introduction
   4.2 The Evidence Sought to Be Excluded
   4.3 Legal Standard
   4.4 Argument — Numbered Grounds
   4.5 Conclusion

5. Certificate of Service

6. Exhibit A — Proposed Order

1. CAPTION

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF [________________]

Case No.: [________________]

Assigned to: Hon. [________________]
Hearing Date: [__/__/____]
Hearing Time: [________________]

2. NOTICE OF MOTION AND HEARING

TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD

PLEASE TAKE NOTICE that on [__/__/____] at [________________], or as soon thereafter as the matter may be heard, before the Honorable [Judge Name], [Plaintiff / Defendant] [________________] (the "Movant") will, and hereby does, move this Court, in advance of trial and outside the presence of the jury, for an order prohibiting [the opposing party] [________________] ("[Opposing Party]"), and its counsel and witnesses, from offering, mentioning, referring to, interrogating concerning, or attempting to convey to the jury in any manner — directly or indirectly — any of the matters of evidence described below, without first obtaining a ruling from the Court outside the presence and hearing of the jury.

The motion is based on this Notice, the accompanying Memorandum of Points and Authorities, the Arizona Rules of Evidence, the pleadings and records on file in this action, and any further evidence or argument that may be presented at or before the hearing.

DATED: [__/__/____]

Respectfully submitted,

[FIRM NAME]

By: ______________________________
[ATTORNEY NAME]
[STATE BAR NO. ________________]
[FIRM ADDRESS]
[CITY, STATE ZIP]
[TELEPHONE] | [EMAIL]
Attorney for [Movant]

3. MOTION IN LIMINE

The Movant respectfully moves this Court, pursuant to its inherent authority to control the conduct of trial and the orderly admission of evidence and pursuant to Ariz. R. Evid. 103, 104(a) and (c), 401, 402, and 403 and Ariz. R. Civ. P. 7.1 and 16, for an order in limine excluding the categories of evidence, testimony, argument, and reference identified below. The Movant further requests that the Court instruct opposing counsel to advise and admonish each of its witnesses to comply with the Court's ruling.

4. MEMORANDUM OF POINTS AND AUTHORITIES

4.1 Introduction

This is an action for [describe nature of action — e.g., negligence arising from a motor-vehicle collision / breach of contract / products liability]. Trial is set to commence on [__/__/____]. The Movant anticipates that, absent an order from this Court, [Opposing Party] will attempt to introduce or elicit evidence and argument that is irrelevant, inadmissible, and unfairly prejudicial, the mere mention of which before the jury would cause harm that no instruction to disregard could cure. The Movant therefore moves to exclude the matters set forth below.

4.2 The Evidence Sought to Be Excluded

The Movant seeks an order excluding the following specific items of evidence:

1. [________________________________]
2. [________________________________]
3. [________________________________]

4.3 Legal Standard

Relevance (Ariz. R. Evid. 401, 402). Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." (Ariz. R. Evid. 401.) Irrelevant evidence is not admissible. (Ariz. R. Evid. 402.)

Unfair Prejudice / Confusion (Ariz. R. Evid. 403). The court "may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." (Ariz. R. Evid. 403.)

Character and Other Acts (Ariz. R. Evid. 404, 608, 609). Evidence of a person's character or character trait is not admissible to prove conduct in conformity therewith; evidence of other crimes, wrongs, or acts is not admissible to prove character to show action in conformity, but may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. (Ariz. R. Evid. 404(b).) Impeachment is governed by Ariz. R. Evid. 608 and 609.

Hearsay (Ariz. R. Evid. 801, 802). Hearsay is not admissible except as provided by the Arizona Rules of Evidence or other applicable rule. (Ariz. R. Evid. 802.)

Subsequent Remedial Measures (Ariz. R. Evid. 407). Evidence of measures taken that would have made an earlier injury or harm less likely to occur is not admissible to prove negligence, culpable conduct, a defect, or a need for a warning or instruction.

Compromise / Settlement (Ariz. R. Evid. 408). Evidence of furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising a disputed claim, and conduct or statements made in compromise negotiations, is not admissible to prove or disprove the validity or amount of the claim.

Liability Insurance (Ariz. R. Evid. 411). Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.

Expert Testimony — Daubert Standard (Ariz. R. Evid. 702). A qualified expert may testify in the form of an opinion if (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. (Ariz. R. Evid. 702.) Effective January 1, 2012, Arizona conformed Rule 702 to the federal rule, adopting the Daubert reliability standard and the trial court's gatekeeping function for all expert testimony.

Golden-Rule and Improper Appeals to Sympathy or Passion. Argument or evidence inviting the jury to place itself in the position of a party (the "golden rule"), or appealing to sympathy, passion, or prejudice rather than the evidence, is improper and subject to exclusion under Ariz. R. Evid. 403 and Arizona decisional law governing improper argument.

4.4 Argument — Numbered Grounds

GROUND 1 — Irrelevant Evidence (Ariz. R. Evid. 401, 402).
The Movant moves to exclude [describe evidence] because it has no tendency to make any fact of consequence more or less probable. Specifically, [________________________________]. Because the evidence is irrelevant, it is inadmissible under Ariz. R. Evid. 402.

GROUND 2 — Unfair Prejudice, Confusion, and Waste of Time (Ariz. R. Evid. 403).
The Movant moves to exclude [describe evidence] because any probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury. [________________________________].

GROUND 3 — Character and Prior Bad Acts (Ariz. R. Evid. 404, 608, 609).
The Movant moves to exclude evidence, reference, or argument concerning [describe prior bad acts / character / prior conviction], which is offered only to suggest the [party/witness] acted in conformity with a bad character and is barred by Ariz. R. Evid. 404, and which fails the requirements and balancing of Ariz. R. Evid. 608, 609, and 403 to the extent offered for impeachment.

GROUND 4 — Inadmissible Hearsay (Ariz. R. Evid. 801, 802).
The Movant moves to exclude [describe out-of-court statement / document] as inadmissible hearsay offered to prove the truth of the matter asserted, for which no exception or exclusion under Ariz. R. Evid. 803, 804, or 807 applies.

GROUND 5 — Subsequent Remedial Measures (Ariz. R. Evid. 407).
The Movant moves to exclude evidence of [describe post-event repair, change, recall, or policy change] offered to prove negligence, culpable conduct, a defect, or a need for a warning, in violation of Ariz. R. Evid. 407.

GROUND 6 — Settlement, Compromise, and Offers (Ariz. R. Evid. 408).
The Movant moves to exclude all evidence, reference, or argument concerning settlement discussions, offers of compromise, or statements made during compromise negotiations, inadmissible under Ariz. R. Evid. 408.

GROUND 7 — Liability Insurance (Ariz. R. Evid. 411).
The Movant moves to exclude any evidence, reference, or argument that any party was or was not covered by liability insurance, inadmissible on the issue of fault under Ariz. R. Evid. 411.

GROUND 8 — Unreliable Expert Testimony (Ariz. R. Evid. 702).
The Movant moves to exclude the opinion testimony of [Expert Name] because it fails the reliability requirements of Ariz. R. Evid. 702: the opinion is not based on sufficient facts or data, is not the product of reliable principles and methods, and/or has not been reliably applied to the facts of this case. Specifically, [________________________________]. The Court should exercise its Daubert gatekeeping function and exclude this testimony.

GROUND 9 — Golden-Rule Argument and Appeals to Sympathy or Passion (Ariz. R. Evid. 403).
The Movant moves to prohibit opposing counsel from making any "golden rule" argument asking jurors to place themselves in the position of a party, and from any argument or evidence appealing to sympathy, passion, or prejudice rather than the evidence.

GROUND 10 — [Additional Ground].
[________________________________]

4.5 Conclusion

For the foregoing reasons, the Movant respectfully requests that this Court GRANT this Motion in Limine; ORDER that [Opposing Party], its counsel, and its witnesses refrain from offering, mentioning, or alluding to the excluded matters in the presence or hearing of the jury, whether during voir dire, opening statement, examination of witnesses, or closing argument, without first approaching the bench and obtaining leave of Court outside the jury's presence; DIRECT counsel to instruct and admonish their witnesses accordingly; and GRANT such other and further relief as the Court deems just and proper.

5. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a copy of the foregoing Motion in Limine and all accompanying papers was served via [the court's electronic filing system (AZTurboCourt) / hand delivery / first-class mail] upon the following counsel of record:

[Opposing Counsel Name]
[Firm Name]
[Address]
[City, State ZIP]
[Email]

______________________________
[Attorney Name]
[State Bar No. ________________]

EXHIBIT A — PROPOSED ORDER

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF [________________]

Case No.: [________________]

ORDER ON MOTION IN LIMINE

Upon consideration of the Movant's Motion in Limine, any response thereto, and the arguments of counsel, the Court finds the Motion is GRANTED as set forth below. It is therefore ORDERED:

1. The following evidence, testimony, argument, and reference is EXCLUDED: [________________________________].
2. [Opposing Party], its counsel, and its witnesses shall not offer, mention, refer to, or attempt to convey to the jury — directly or indirectly — any of the excluded matters during voir dire, opening statement, the examination of witnesses, or closing argument, without first obtaining leave of Court outside the presence and hearing of the jury.
3. Counsel for [Opposing Party] shall instruct and admonish each of its witnesses to comply with this Order.

Ruling on each numbered ground:

☐ GROUND 1 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 2 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 3 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 4 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 5 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 6 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 7 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 8 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 9 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 10 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐

DATED this ______ day of ________________, 20____.

______________________________
Judge of the Superior Court

SOURCES AND REFERENCES

• Arizona Rules of Evidence (Ariz. R. Evid.), Article IV (Relevancy and Its Limits), Rules 401–411; Article VI (Witnesses); Article VII (Opinions and Expert Testimony); Article VIII (Hearsay): https://www.azcourts.gov/rules
• Ariz. R. Evid. 403 — Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
• Ariz. R. Evid. 404 — Character Evidence; Other Crimes, Wrongs, or Acts
• Ariz. R. Evid. 702 — Testimony by Expert Witnesses (Daubert standard; conformed to FRE eff. Jan. 1, 2012)
• Arizona Rules of Evidence, Prefatory Comment to 2012 Amendments (restyling and conforming changes, including Rule 702): https://www.azcourts.gov/Portals/0/20/R100035.pdf
• Ariz. R. Civ. P. 7.1 (motions) and 16 (trial management): https://www.azcourts.gov/rules