State Court Motion in Limine - Nebraska

MOTION IN LIMINE AND BRIEF IN SUPPORT

(State of Nebraska — District Court of [________________] County)

TEMPLATE INSTRUCTIONS

☐ Replace every bracketed placeholder with case-specific information
☐ For any expert challenge, frame it in terms of the Daubert/Schafersman reliability factors (§ 27-702)
☐ Cite the Nebraska Evidence Rules by statute/Rule number (§ 27-401 to 403, 404, 407, 408, 411, 702)
☐ Renew each objection at trial — a ruling on this motion preserves nothing by itself
☐ Remove all template instructions and guidance notes before filing

1. CAPTION

IN THE DISTRICT COURT OF [________________] COUNTY, NEBRASKA

Case No.: [________________]
Judge: Hon. [________________]
Trial Date: [__/__/____]

2. MOTION IN LIMINE

COMES NOW [Moving Party Name] ("Movant"), by and through undersigned counsel, and respectfully moves this Court, in advance of trial, for an order prohibiting [Opposing Party Name], its counsel, and its witnesses from offering, mentioning, eliciting, referring to, or in any manner conveying to the jury — directly or indirectly — any of the matters set forth below, without first approaching the bench and obtaining a ruling outside the presence and hearing of the jury.

The matters identified below are inadmissible under the Nebraska Evidence Rules, and any reference to them before the jury would be so prejudicial that an instruction to disregard could not cure the harm. This Motion is supported by the following Brief in Support.

3. BRIEF IN SUPPORT

3.1 Introduction

This case is set for jury trial on [__/__/____]. Movant anticipates that, absent an order in limine, [Opposing Party] will attempt to introduce evidence or argument that is irrelevant, unfairly prejudicial, or otherwise inadmissible under the Nebraska Evidence Rules. This Motion seeks to prevent the injection of such matters into trial, where their prejudicial effect could not be undone after the jury has heard them.

3.2 Legal Standard

Relevance — Neb. Rev. Stat. §§ 27-401, 27-402. "Relevant evidence" means evidence having any tendency to make the existence of a fact of consequence more or less probable. All relevant evidence is admissible except as otherwise provided; irrelevant evidence is inadmissible.

Unfair prejudice — Neb. Rev. Stat. § 27-403. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Character and prior acts — Neb. Rev. Stat. § 27-404. Evidence of a person's character is not admissible to prove action in conformity therewith; evidence of other crimes, wrongs, or acts is inadmissible to prove character but may be admissible for another purpose, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Subsequent remedial measures — Neb. Rev. Stat. § 27-407. Evidence of measures taken after an event that would have made the event less likely to occur is not admissible to prove negligence or culpable conduct, though it may be admissible for another purpose, such as ownership, control, feasibility (if controverted), or impeachment.

Compromise — Neb. Rev. Stat. § 27-408. Evidence of furnishing, offering, or promising to furnish (or accepting) consideration in compromising a disputed claim, and conduct or statements made in compromise negotiations, is not admissible to prove liability for or the amount of the claim.

Liability insurance — Neb. Rev. Stat. § 27-411. Evidence that a person was or was not insured against liability is not admissible on the question of whether the person acted negligently or otherwise wrongfully.

Expert testimony — Neb. Rev. Stat. § 27-702 (Daubert/Schafersman). A witness qualified as an expert by knowledge, skill, experience, training, or education may testify if specialized knowledge will assist the trier of fact. Nebraska adopted the Daubert reliability framework in Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001). The trial court acts as a gatekeeper, ensuring the testimony is both relevant and reliable. In assessing reliability, the court may consider the nonexclusive factors of (1) whether the theory or technique can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence of standards controlling the technique's operation; and (5) general acceptance in the relevant scientific community. See State v. Herrera, 289 Neb. 575, 856 N.W.2d 310 (2014). A challenge should take the form of a concise pretrial motion identifying, in terms of the Daubert/Schafersman factors, the validity and reliability deficiencies.

Golden-rule and sympathy argument. Argument inviting jurors to place themselves in a party's position, or appealing to passion, sympathy, or prejudice rather than the evidence, is improper and should be excluded.

3.3 Specific Matters To Be Excluded

Ground 1 — Irrelevant and unfairly prejudicial evidence of [________________________________].
This evidence has no tendency to prove any fact of consequence; even if marginally relevant, its probative value is substantially outweighed by the danger of unfair prejudice and confusion under §§ 27-401 to 27-403.

Ground 2 — Character evidence and prior bad acts of [________________].
Inadmissible under § 27-404 to show conduct in conformity, and offered for no proper non-propensity purpose.

Ground 3 — Subsequent remedial measures.
[Repairs / design changes / policy changes] taken after [the event] are inadmissible under § 27-407 to prove negligence or culpable conduct.

Ground 4 — Compromise and settlement negotiations.
Any settlement discussions, demands, offers, or statements made in compromise negotiations regarding [________________] are inadmissible under § 27-408.

Ground 5 — Liability insurance.
The existence, absence, or amount of any liability insurance is inadmissible under § 27-411.

Ground 6 — Unreliable expert opinion of [Expert Name].
The opinions of [Expert Name] fail the gatekeeping requirements of § 27-702 and Schafersman because [the methodology cannot be or has not been tested / lacks peer review / has an unacceptable error rate / is not generally accepted / the analytical gap between the data and the opinion is too great]. The opinion should be excluded.

Ground 7 — Hearsay statements of [________________].
[Out-of-court statement] offered for the truth of the matter asserted is inadmissible hearsay not within any recognized exception (§§ 27-801 to 27-804).

Ground 8 — Golden-rule, sympathy, and "send a message" argument.
Counsel should be barred from asking jurors to place themselves in a party's position or from appealing to passion, sympathy, or community prejudice.

Ground 9 — [Additional ground: ________________________________].
[State the evidence and the basis for exclusion.]

3.4 Relief Requested

WHEREFORE, Movant respectfully requests that the Court:

1. GRANT this Motion in Limine and enter an order excluding each category of evidence and argument identified above;
2. INSTRUCT counsel for [Opposing Party] to refrain from any direct or indirect reference to the excluded matters in voir dire, opening statement, examination of witnesses, exhibits, or closing argument;
3. DIRECT counsel for [Opposing Party] to admonish and instruct each of its witnesses, before testifying, not to mention or volunteer any of the excluded matters in the presence of the jury;
4. REQUIRE that, before any party offers or attempts to elicit any excluded matter, counsel first approach the bench and obtain a ruling outside the presence and hearing of the jury; and
5. GRANT such other and further relief as the Court deems just.

DATED: [__/__/____]

Respectfully submitted,

[FIRM NAME]

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

4. CERTIFICATE OF SERVICE

I certify that on [__/__/____], a true and correct copy of the foregoing was served upon all counsel of record via the Nebraska eFiling system or as indicated below:

[Opposing Counsel Name] | [Firm] | [Address] | [Email]

Service method: ☐ Nebraska eFiling ☐ U.S. Mail ☐ Email ☐ Hand delivery

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

5. [PROPOSED] ORDER

IN THE DISTRICT COURT OF [________________] COUNTY, NEBRASKA

Case No.: [________________]

ORDER ON MOTION IN LIMINE

Upon consideration of Movant's Motion in Limine, any response, and the applicable law, the Court ORDERS as follows as to each numbered ground:

IT IS FURTHER ORDERED that counsel shall instruct their witnesses to comply with this Order and shall approach the bench before referring to any matter excluded above.

DATED this ______ day of ________________, 20____.

______________________________
District Court Judge

Sources and References

• Neb. Rev. Stat. § 27-702 — Rule 702. Testimony by experts (with annotations): https://nebraskalegislature.gov/laws/statutes.php?statute=27-702
• Neb. Rev. Stat. §§ 27-401 to 27-403 (relevance/prejudice); 27-404 (character); 27-407 (subsequent remedial measures); 27-408 (compromise); 27-411 (liability insurance)
• Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001) (adopting Daubert); 268 Neb. 138 (2004) (on remand): https://law.justia.com/cases/nebraska/supreme-court/2004/1267-0.html
• State v. Herrera, 289 Neb. 575, 856 N.W.2d 310 (2014) — gatekeeping; concise pretrial Daubert/Schafersman motion
• State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017) — opinion must be helpful to the trier of fact
• Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)