State Court Motion in Limine - Mississippi

MOTION IN LIMINE

(State of Mississippi — [Circuit Court / Chancery Court])

TABLE OF CONTENTS

1. Caption
2. Notice of Motion and Hearing
3. Motion in Limine
4. Evidence Sought to Be Excluded

5. Memorandum of Authorities in Support
   5.1 Introduction
   5.2 Legal Standards
   5.3 Argument — Grounds for Exclusion
   5.4 Request to Instruct and Admonish

6. Request for Oral Argument

7. Conclusion
8. Rule 11 Certification
9. Certificate of Service
10. Exhibit A — Proposed Form of Order

1. CAPTION

IN THE [CIRCUIT / CHANCERY] COURT OF
[________________] COUNTY, MISSISSIPPI

Hearing Date: [________________]
Hearing Time: [________________]
Courtroom: [________________]
Judge: Hon. [________________]

2. NOTICE OF MOTION AND HEARING

TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD

PLEASE TAKE NOTICE that on [Hearing Date] at [Hearing Time], or as soon thereafter as counsel may be heard, in [Courtroom] of the above-entitled court, located at [Courthouse Address, City, Mississippi], before the Honorable [Judge Name], [Plaintiff / Defendant] [Moving Party Name] ("Movant") will, and hereby does, move this Court in limine, pursuant to Miss. R. Evid. 401-403 and the additional authorities below, for an order before trial precluding the opposing party, its counsel, and its witnesses from offering, mentioning, referring to, or eliciting the evidence and argument identified herein, in the presence of the jury or the venire.

This Motion is based on this Notice, the accompanying Memorandum of Authorities, the Mississippi Rules of Evidence, the pleadings and records on file, and any further evidence or argument presented at or before the hearing.

DATED: [________________]

Respectfully submitted,

[FIRM NAME]

By: ______________________________
[ATTORNEY NAME]
[MS Bar No. ________________]
[FIRM ADDRESS]
[CITY, STATE ZIP]
[TELEPHONE] | [EMAIL]
Attorneys for [Moving Party]

3. MOTION IN LIMINE

[Moving Party Name] ("Movant"), by and through undersigned counsel and pursuant to Miss. R. Evid. 401, 402, and 403 and the additional rules cited below, respectfully moves this Court for an order in limine ruling, before any such evidence is offered, displayed, or mentioned at trial, that the matters described in Section 4 are inadmissible and shall be excluded. A motion in limine should be granted where (1) the evidence in question will be inadmissible at trial under the rules of evidence, and (2) the mere offer, reference to, or statement concerning the material during trial would tend to prejudice the jury. See Whittley v. City of Meridian, 530 So. 2d 1341, 1344 (Miss. 1988). In support, Movant relies on the accompanying Memorandum of Authorities.

4. EVIDENCE SOUGHT TO BE EXCLUDED

Movant seeks an order excluding the following categories of evidence, testimony, argument, and reference (select and complete each applicable item; renumber as needed):

☐ (a) [Describe specific evidence/testimony/exhibit].
☐ (b) [________________________________].
☐ (c) [________________________________].
☐ (d) [________________________________].
☐ (e) [________________________________].

5. MEMORANDUM OF AUTHORITIES IN SUPPORT OF THE MOTION IN LIMINE

5.1 Introduction

This case is set for trial on [__/__/____]. Movant anticipates that the opposing party will attempt to introduce the matters identified in Section 4, none of which is admissible under the Mississippi Rules of Evidence. Because even the mention of these matters before the jury would cause unfair prejudice that no instruction could fully cure, Movant asks the Court to rule on admissibility now, in limine, and to instruct counsel and witnesses accordingly.

5.2 Legal Standards

Relevance — Miss. 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. Miss. R. Evid. 401. Irrelevant evidence is not admissible. Miss. R. Evid. 402.

Unfair Prejudice — Miss. R. Evid. 403. The Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Miss. R. Evid. 403.

Character and Other Acts — Miss. R. Evid. 404. Evidence of a person's character or character trait is not admissible to prove conduct in conformity therewith; evidence of a crime, wrong, or other act is not admissible to prove propensity, though it may be admissible for another purpose (e.g., motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident). Miss. R. Evid. 404(b). Impeachment by character for truthfulness and by prior convictions is governed by Miss. R. Evid. 608 and 609.

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

Compromise Offers and Negotiations — Miss. R. Evid. 408. Evidence of furnishing, offering, or accepting a valuable consideration in compromising or attempting to compromise a claim, and statements made in compromise negotiations, is not admissible to prove or disprove the validity or amount of a disputed claim.

Liability Insurance — Miss. 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.

Hearsay — Miss. R. Evid. 801 et seq. Out-of-court statements offered for their truth are inadmissible unless they fall within an exclusion or exception.

Expert Testimony / Reliability — Miss. R. Evid. 702; DAUBERT. A qualified expert may testify only if the testimony is based on sufficient facts or data, is the product of reliable principles and methods, and the expert has reliably applied the principles and methods to the facts of the case. Miss. R. Evid. 702. Mississippi has adopted the modified Daubert/Kumho Tire standard, abandoning the Frye "general acceptance" test. Miss. Transp. Comm'n v. McLemore, 863 So. 2d 31, 35-39 (Miss. 2003). The trial court is a "gatekeeper" who must ensure that expert testimony is not only relevant but also reliable, considering the non-exhaustive Daubert/Kumho factors (e.g., whether the theory or technique can be and has been tested, peer review and publication, known or potential error rate, controlling standards, and general acceptance). Speculative opinions that are untested, unpublished, and unsupported are inadmissible. See McLemore, 863 So. 2d at 36-39.

Golden Rule / Sympathy / Improper Argument. Argument inviting jurors to place themselves in a party's position ("golden rule"), or appealing to passion, prejudice, sympathy, or community sentiment rather than the evidence, is improper and should be precluded.

5.3 Argument — Grounds for Exclusion

GROUND 1 — Irrelevant Evidence (Miss. R. Evid. 401, 402). The evidence described in Section 4[____] has no tendency to make any fact of consequence more or less probable, because [________________________________], and is therefore inadmissible.

GROUND 2 — Unfair Prejudice Substantially Outweighs Probative Value (Miss. R. Evid. 403). Even if marginally relevant, the evidence in Section 4[____] should be excluded because its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, and waste of time. Specifically, [explain why no limiting instruction would cure the harm: ________________________________].

GROUND 3 — Improper Character / Other Acts (Miss. R. Evid. 404, 608, 609). The evidence in Section 4[____] is offered only to suggest that [party/witness] acted in conformity with a character trait or other act and is inadmissible propensity evidence serving no permitted Rule 404(b) purpose; any impeachment use is barred or limited by Rules 608-609 because [________________________________].

GROUND 4 — Inadmissible Hearsay (Miss. R. Evid. 801 et seq.). The statement(s) in Section 4[____] are out-of-court statements offered for their truth and fall within no exclusion or exception. [Identify statement and declarant: ________________________________].

GROUND 5 — Subsequent Remedial Measures (Miss. R. Evid. 407). The evidence in Section 4[____] concerns measures taken after the [incident/injury] that would have made the harm less likely, offered to prove negligence, culpable conduct, a defect, or a need for a warning. [Describe: ________________________________].

GROUND 6 — Settlement / Compromise (Miss. R. Evid. 408). The evidence in Section 4[____] concerns settlement communications or offers of compromise and is inadmissible to prove or disprove the validity or amount of the disputed claim. [Describe: ________________________________].

GROUND 7 — Liability Insurance (Miss. R. Evid. 411). Any reference to whether a party is or is not insured against liability is inadmissible on the issue of fault and is unfairly prejudicial. [Describe: ________________________________].

GROUND 8 — Unreliable Expert Opinion (Miss. R. Evid. 702; McLemore / Daubert). The opinion(s) of [expert name] in Section 4[____] should be excluded because the testimony fails the gatekeeping requirements of Miss. R. Evid. 702 and McLemore: the methodology is unreliable and/or was not reliably applied to the facts, and the opinion is speculative under the Daubert/Kumho factors. Specifically, [identify the deficiency — untested theory, no peer review, unknown error rate, not generally accepted, analytical gap, ipse dixit: ________________________________].

GROUND 9 — Golden-Rule / Sympathy / Improper Argument. The opposing party should be precluded from making "golden rule" appeals, inviting jurors to imagine themselves or their families in a party's position, or otherwise appealing to passion, sympathy, or prejudice rather than the evidence. [Describe: ________________________________].

GROUND 10 — [Additional Ground]. [State rule and basis: ________________________________].

5.4 Request to Instruct Counsel and Admonish Witnesses

Because the prejudice from even a single improper reference may be incurable, Movant respectfully requests that the Court, if it grants this Motion:

1. Instruct opposing counsel to refrain from offering, mentioning, or alluding to the excluded matters — directly or indirectly — in voir dire, opening, examination, exhibits, or closing;
2. Direct opposing counsel to admonish and instruct each of its witnesses, before they testify, not to volunteer or refer to the excluded matters before the jury;
3. Require counsel to approach the bench and obtain a ruling outside the hearing of the jury before offering, referencing, or eliciting any excluded matter; and
4. Reserve to Movant all objections and the right to seek a mistrial or other appropriate relief upon violation.

6. REQUEST FOR ORAL ARGUMENT

Movant respectfully requests a hearing and oral argument on this Motion. A pretrial ruling will streamline the trial, reduce sidebar interruptions, and prevent the jury's exposure to inadmissible, prejudicial matter.

7. CONCLUSION

WHEREFORE, Movant respectfully requests that this Court:

1. Grant this Motion in Limine;
2. Exclude the categories of evidence, testimony, argument, and reference identified in Section 4;
3. Instruct counsel and admonish witnesses as set forth in Section 5.4;
4. Require advance notice and a bench conference before any party offers or references the excluded matters; and
5. Enter the Proposed Order attached as Exhibit A and grant such other and further relief as the Court deems just and proper.

8. RULE 11 CERTIFICATION

The undersigned counsel certifies, pursuant to Miss. R. Civ. P. 11, that this Motion is well grounded in fact and warranted by existing law, and is not interposed for any improper purpose, such as harassment or unnecessary delay.

______________________________
[Attorney Name], MS Bar No. [________________]

9. CERTIFICATE OF SERVICE

I, [________________], hereby certify that on this ______ day of [________________], 20____, I electronically filed and/or served a true and correct copy of the foregoing Motion in Limine, Memorandum of Authorities, and proposed Order upon all counsel of record via [MEC e-filing system / U.S. Mail, postage prepaid / hand delivery] in accordance with Miss. R. Civ. P. 5.

______________________________
[Attorney Name]

EXHIBIT A — PROPOSED FORM OF ORDER

IN THE [CIRCUIT / CHANCERY] COURT OF
[________________] COUNTY, MISSISSIPPI

ORDER GRANTING MOTION IN LIMINE

THIS CAUSE came before the Court on [Moving Party]'s Motion in Limine. The Court, having considered the Motion, the Memorandum of Authorities, any response, the argument of counsel, and the record, finds that the Motion is well taken and should be GRANTED.

IT IS THEREFORE ORDERED AND ADJUDGED that the opposing party, its counsel, and its witnesses are precluded from offering, mentioning, referring to, or eliciting the following before the jury, absent a prior ruling of this Court obtained outside the hearing of the jury:

☐ [________________________________]
☐ [________________________________]
☐ [________________________________]

IT IS FURTHER ORDERED that counsel shall instruct and admonish their witnesses to comply with this Order, and shall approach the bench for a ruling before offering or referencing any excluded matter.

SO ORDERED AND ADJUDGED this the ______ day of [________________], 20____.

______________________________
[CIRCUIT / CHANCERY] COURT JUDGE

Sources and References

• Miss. R. Evid. 401 (Test for Relevant Evidence); 402; 403 (Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons) — https://courts.ms.gov/research/rules/msrulesofcourt/
• Miss. R. Evid. 404 (Character; Other Crimes, Wrongs, or Acts); 608, 609 (Impeachment)
• Miss. R. Evid. 407 (Subsequent Remedial Measures); 408 (Compromise); 411 (Liability Insurance)
• Miss. R. Evid. 702 (Testimony by Expert Witnesses)
• Miss. Transp. Comm'n v. McLemore, 863 So. 2d 31 (Miss. 2003) (adopting modified Daubert) — https://caselaw.findlaw.com/court/ms-supreme-court/1439489.html
• Whittley v. City of Meridian, 530 So. 2d 1341 (Miss. 1988) (two-part motion-in-limine test)
• Miss. R. Civ. P. 5, 7, 11 — https://courts.ms.gov/