State Court Motion in Limine - Texas

MOTION IN LIMINE

(State of Texas — Motion in Limine to Exclude Evidence)

TABLE OF CONTENTS

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

4. Memorandum of Law
   4.1 Introduction
   4.2 The Matters Sought to Be Excluded
   4.3 Legal Standard
   4.4 Argument — Numbered Grounds

5. Prayer

6. Certificates
   6.1 Certificate of Conference
   6.2 Certificate of Service

7. Signature Block

8. Exhibit A — Proposed Order

1. CAPTION

IN THE [________________] JUDICIAL DISTRICT COURT
[________________] COUNTY, TEXAS

Hearing Date: [__/__/____]
Hearing Time: [________________]
Courtroom: [________________]
Judge: Hon. [________________]
Trial Date: [__/__/____]

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 the matter may be heard, in [Courtroom] of the above-entitled court, located at [Courthouse Address, City, Texas], before the Honorable [Judge Name], [Plaintiff / Defendant] [________________] ("Movant") will, and hereby does, move this Court, in advance of trial and outside the presence of the jury, for an order in limine instructing [the opposing party] [________________] ("[Opposing Party]"), its counsel, and its witnesses not to offer, mention, refer to, interrogate concerning, or attempt to convey to the jury in any manner — directly or indirectly — the matters described below, without first approaching the bench and obtaining a ruling from the Court outside the presence and hearing of the jury.

This Motion is based on this Notice, the accompanying Memorandum of Law, the pleadings and records on file in this action, and any further evidence or argument 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

Movant [________________] respectfully moves this Court, pursuant to its inherent authority to control the proceedings and the Texas Rules of Evidence, for an order in limine prohibiting [Opposing Party], its counsel, and its witnesses from offering, mentioning, or alluding to the matters set forth below in the presence of the jury without first approaching the bench and obtaining a ruling from the Court. Movant requests that the Court instruct counsel for [Opposing Party] to advise and admonish each of its witnesses to comply with the Court's order.

4. MEMORANDUM OF LAW

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 for [__/__/____]. Movant anticipates that, absent an order from this Court, [Opposing Party] will attempt to introduce or elicit evidence and argument that is irrelevant under Tex. R. Evid. 401 and 402, and/or that is subject to exclusion under Tex. R. Evid. 403 because its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, or misleading the jury — the mere mention of which before the jury would cause harm that no instruction could cure. Movant therefore moves in limine to exclude the matters set forth below.

4.2 The Matters Sought to Be Excluded

Movant seeks an order excluding the following specific matters:

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

4.3 Legal Standard

Relevance (Tex. 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. (Tex. R. Evid. 401.) Irrelevant evidence is not admissible. (Tex. R. Evid. 402.)

Discretion to Exclude — Tex. R. Evid. 403 (the FRE 403 analog). 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, or needlessly presenting cumulative evidence. (Tex. R. Evid. 403.)

Character and Other Acts (Tex. R. Evid. 404). Evidence of a person's character or character trait is generally not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. (Tex. R. Evid. 404(a).) Evidence of a crime, wrong, or other act is not admissible to prove character in order to show action in conformity, though it may be admissible for another purpose — such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident — subject to Rule 404(b) and to exclusion under Rule 403.

Credibility and Impeachment (Tex. R. Evid. 608, 609). A witness's character for truthfulness may be addressed under Rule 608. Impeachment by evidence of a criminal conviction is governed by Rule 609, including its requirements concerning the nature of the crime, time limits, and the balancing of probative value against prejudicial effect.

Hearsay (Tex. R. Evid. 801, 802). Hearsay is not admissible unless a statute, the Texas Rules of Evidence, or other rules prescribed under statutory authority provide otherwise. (Tex. R. Evid. 802.)

Subsequent Remedial Measures (Tex. R. Evid. 407). When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. Such evidence may be admitted for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

Compromise Offers and Negotiations (Tex. R. Evid. 408). Evidence of furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — valuable consideration in compromising or attempting to compromise a claim, and conduct or statements made during compromise negotiations, is not admissible to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or contradiction.

Liability Insurance (Tex. 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 — Tex. R. Evid. 702 and the Robinson/Gammill Gatekeeper. A witness qualified as an expert by knowledge, skill, experience, training, or education may testify if the expert's scientific, technical, or other specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue. (Tex. R. Evid. 702.) Under E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), the trial court acts as a gatekeeper and must exclude expert testimony that is not both relevant and reliable. Robinson adopted and expanded the federal Daubert framework, identifying non-exclusive reliability factors: whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; the potential rate of error; whether the underlying theory or technique is generally accepted as valid by the relevant scientific community; the non-judicial uses of the theory or technique; and the extent to which the technique relies on the subjective interpretation of the expert. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998), extends the reliability requirement to non-scientific, experience-based expert testimony and authorizes exclusion where there is "too great an analytical gap" between the data and the opinion. Once the opponent objects, the proponent bears the burden of establishing admissibility.

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

4.4 Argument — Numbered Grounds

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

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

GROUND 3 — Character and Other Acts (Tex. R. Evid. 404; 403).
Movant moves to exclude evidence, reference, or argument concerning [describe prior bad acts / character], which is offered only to prove that the [party/witness] acted in conformity with a character trait and is inadmissible under Tex. R. Evid. 404, and which, even if offered for a permissible purpose under Rule 404(b), should be excluded under Rule 403.

GROUND 4 — Improper Impeachment (Tex. R. Evid. 608, 609; 403).
Movant moves to exclude impeachment by [describe prior conviction / other matter] because it does not satisfy the requirements of Tex. R. Evid. 609 and/or its probative value on credibility is substantially outweighed by the danger of unfair prejudice under Rule 403.

GROUND 5 — Inadmissible Hearsay (Tex. R. Evid. 801, 802).
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 applies.

GROUND 6 — Subsequent Remedial Measures (Tex. R. Evid. 407).
Movant moves to exclude evidence of [describe post-event repair, change, recall, or policy change] offered to prove negligence, culpable conduct, a product defect, or a need for a warning, inadmissible under Tex. R. Evid. 407.

GROUND 7 — Compromise Offers and Negotiations (Tex. R. Evid. 408).
Movant moves to exclude all evidence, reference, or argument concerning settlement discussions, offers of compromise, or statements made during negotiations, inadmissible under Tex. R. Evid. 408.

GROUND 8 — Liability Insurance (Tex. R. Evid. 411).
Movant moves to exclude any evidence, reference, or argument that any party was or was not covered by liability insurance, which is inadmissible on the issue of negligent or wrongful conduct.

GROUND 9 — Inadmissible / Unreliable Expert Testimony (Tex. R. Evid. 702; Robinson; Gammill).
Movant moves to exclude the opinion testimony of [Expert Name] because, under Tex. R. Evid. 702 and E.I. du Pont de Nemours & Co. v. Robinson (and, for any experience-based opinion, Gammill v. Jack Williams Chevrolet, Inc.), the testimony is unreliable and/or irrelevant: [it is not based on a tested, peer-reviewed, or generally accepted methodology / it has an unacceptable rate of error / there is too great an analytical gap between the data and the opinion]. Specifically, [________________________________]. Because the proponent cannot satisfy its burden of establishing reliability, the Court should perform its gatekeeping function and exclude this testimony.

GROUND 10 — Golden-Rule Argument and Appeals to Sympathy or Passion (Tex. R. Evid. 403).
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 11 — [Additional Ground].
[________________________________]

5. PRAYER

WHEREFORE, Movant respectfully prays that this Court:

1. Grant this Motion in Limine;
2. 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 — during voir dire, opening statement, examination of witnesses, or closing argument — without first approaching the bench and obtaining a ruling from the Court outside the jury's presence;
3. Direct counsel for [Opposing Party] to instruct and admonish each of its witnesses to comply with this Order; and
4. Grant such other and further relief to which Movant may be justly entitled.

6. CERTIFICATES

6.1 Certificate of Conference

I certify that on [__/__/____], counsel for Movant conferred with counsel for [Opposing Party] regarding the relief requested herein. Counsel for [Opposing Party] indicated that the [Opposing Party] [is opposed / takes no position / is unopposed] to the Motion.

______________________________
[Attorney Name]

6.2 Certificate of Service

I certify that a true and correct copy of this Motion was served on all counsel of record on [__/__/____] in accordance with Texas Rule of Civil Procedure 21a via [e-filing / email / facsimile / certified mail].

______________________________
[Attorney Name]

7. SIGNATURE BLOCK

Respectfully submitted,

[LAW FIRM NAME]

By: ______________________________
[ATTORNEY NAME]
State Bar No. [________________]
[ADDRESS] | [CITY, STATE ZIP]
[TELEPHONE] | [FAX] | [EMAIL]
ATTORNEY FOR [MOVANT]

EXHIBIT A — [PROPOSED] ORDER

IN THE [________________] JUDICIAL DISTRICT COURT
[________________] COUNTY, TEXAS

ORDER GRANTING [MOVANT]'S MOTION IN LIMINE

On this day, the Court considered Movant's Motion in Limine. After considering the Motion, any response, the pleadings on file, and the arguments of counsel, the Court ORDERS as follows:

1. The Motion is GRANTED as set forth below.
2. The following matters are EXCLUDED: [________________________________]. [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 without first approaching the bench and obtaining a ruling from the 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 ☐ / CARRIED to trial ☐
GROUND 2 — GRANTED ☐ / DENIED ☐ / CARRIED to trial ☐
GROUND 3 — GRANTED ☐ / DENIED ☐ / CARRIED to trial ☐
GROUND 4 — GRANTED ☐ / DENIED ☐ / CARRIED to trial ☐
GROUND 5 — GRANTED ☐ / DENIED ☐ / CARRIED to trial ☐
GROUND 6 — GRANTED ☐ / DENIED ☐ / CARRIED to trial ☐
GROUND 7 — GRANTED ☐ / DENIED ☐ / CARRIED to trial ☐
GROUND 8 — GRANTED ☐ / DENIED ☐ / CARRIED to trial ☐
GROUND 9 — GRANTED ☐ / DENIED ☐ / CARRIED to trial ☐
GROUND 10 — GRANTED ☐ / DENIED ☐ / CARRIED to trial ☐
GROUND 11 — GRANTED ☐ / DENIED ☐ / CARRIED to trial ☐

IT IS SO ORDERED.

SIGNED this _____ day of ________________________, 20_____.

______________________________
JUDGE PRESIDING

SOURCES AND REFERENCES

• Texas Rules of Evidence (effective text): https://www.txcourts.gov/rules-forms/rules-standards/
• Tex. R. Evid. 401, 402, 403 — Relevance and exclusion for prejudice, confusion, or other reasons
• Tex. R. Evid. 404 — Character evidence; crimes, wrongs, or other acts
• Tex. R. Evid. 407 — Subsequent remedial measures; notification of defect: https://texasevidence.com/article-iv/rule-407/
• Tex. R. Evid. 408 — Compromise offers and negotiations
• Tex. R. Evid. 411 — Liability insurance
• Tex. R. Evid. 608, 609 — Witness's character for truthfulness; impeachment by criminal conviction
• Tex. R. Evid. 702 — Testimony by expert witnesses
• E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) — Texas expert reliability/gatekeeping standard (adopting and expanding Daubert)
• Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998) — reliability of non-scientific, experience-based expert testimony; "analytical gap"
• Tex. R. Civ. P. 21a — Methods of service