State Court Motion in Limine - Virginia

MOTION IN LIMINE

(Virginia Circuit Court — Motion in Limine to Exclude Evidence)

TABLE OF CONTENTS

1. Caption
2. Notice of Motion and Motion

3. Memorandum of Law
   3.1 Introduction
   3.2 The Evidence Sought to Be Excluded
   3.3 Legal Standard
   3.4 Argument — Numbered Grounds
   3.5 Conclusion

4. Proposed Order

5. Certificate of Service

1. CAPTION

VIRGINIA:
IN THE CIRCUIT COURT OF [____________________________] [COUNTY / CITY]

Case No.: [________________]
Judge: Hon. [________________]

[MOVANT]'S MOTION IN LIMINE NO. [____] TO EXCLUDE [________________]

Trial Date: [__/__/____]
Hearing Date: [__/__/____] at [________________] a.m./p.m.

2. NOTICE OF MOTION AND MOTION

TO: [________________________________], Counsel for [Plaintiff / Defendant], and all parties of record.

PLEASE TAKE NOTICE that [Plaintiff / Defendant] [________________] ("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 — the evidence and matters described below, and from suggesting to the jury that such matters exist, without first obtaining a ruling from the Court outside the presence and hearing of the jury.

This Motion is made pursuant to the Court's inherent authority to control the proceedings and Virginia Rules of Evidence 2:401, 2:402, and 2:403, and the additional authorities set forth below, on the grounds that the evidence is irrelevant and/or that its probative value is substantially outweighed by the danger of unfair prejudice, the likelihood of confusing or misleading the trier of fact, or the needless presentation of cumulative evidence. The Motion is based on this Notice, the accompanying Memorandum of Law, the papers and records on file in this action, and any further evidence or argument presented at or before the hearing.

DATED: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: ______________________________
[ATTORNEY NAME] (VSB No. [________________])
Counsel for [Movant]

3. MEMORANDUM OF LAW

3.1 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 Va. R. Evid. 2:401 and 2:402, and/or that is subject to exclusion under Va. R. Evid. 2:403 because its probative value is substantially outweighed by the danger of unfair prejudice, confusion, or misleading the trier of fact — the mere mention of which before the jury would cause harm that no instruction could cure. Movant therefore moves to exclude the matters set forth below.

3.2 The Evidence Sought to Be Excluded

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

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

3.3 Legal Standard

Relevance (Va. R. Evid. 2:401, 2:402). "Relevant evidence" means evidence having any tendency to make the existence of any fact in issue more probable or less probable than it would be without the evidence. (Va. R. Evid. 2:401.) Evidence that is not relevant is not admissible. (Va. R. Evid. 2:402.)

Discretion to Exclude — Va. R. Evid. 2:403 (the FRE 403 analog). Relevant evidence may be excluded if the probative value of the evidence is substantially outweighed by (i) the danger of unfair prejudice, or (ii) its likelihood of confusing or misleading the trier of fact, or (iii) the needless presentation of cumulative evidence. (Va. R. Evid. 2:403.)

Character and Other Acts (Va. R. Evid. 2:404). Evidence of a person's character or character trait is generally not admissible to prove the person acted in conformity therewith on a particular occasion. (Va. R. Evid. 2:404(a).) Evidence of other crimes, wrongs, or acts is generally not admissible to prove the character trait of a person in order to show conduct in conformity therewith, though it may be admissible for other purposes — such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident — subject to Rule 2:404(b) and to exclusion under Rule 2:403.

Credibility and Impeachment (Va. R. Evid. 2:607–2:609). A witness's credibility may be attacked as provided in Va. R. Evid. 2:607. Impeachment by evidence of conviction of crime is governed by Va. R. Evid. 2:609, subject to its conditions.

Hearsay (Va. R. Evid. 2:801, 2:802). Hearsay is not admissible except as provided by the Rules of Evidence, other rules adopted by the Supreme Court of Virginia, or by Virginia statute. (Va. R. Evid. 2:802.)

Subsequent Remedial Measures (Va. R. Evid. 2:407; Va. Code § 8.01-418.1). When, after the occurrence of an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. Such evidence may be admissible for another purpose if controverted (e.g., ownership, control, or feasibility) or for impeachment.

Compromise Offers and Negotiations (Va. R. Evid. 2:408). In a civil case, 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 by contradiction. Such evidence may be admitted for another purpose, such as proving a witness's bias or prejudice or negating a contention of undue delay.

Liability Insurance (Va. R. Evid. 2:411). Evidence that a person was or was not insured against liability is not admissible upon the issue of whether the person acted negligently or otherwise wrongfully.

Expert Testimony — Va. R. Evid. 2:702 and Va. Code § 8.01-401.3 (Virginia's Own Standard). Virginia does not follow Daubert or Frye; it applies its own standard for expert testimony. In a civil proceeding, if scientific, technical, or other specialized knowledge will assist the trier of fact, a qualified expert may testify in the form of an opinion. (Va. R. Evid. 2:702(a)(i), derived from Va. Code § 8.01-401.3(A).) However, testimony that is speculative, or that opines on the credibility of another witness, is not admissible (Va. R. Evid. 2:702(b)), and in no event may a witness express an opinion that constitutes a conclusion of law (Va. Code § 8.01-401.3(B)). The Supreme Court of Virginia requires that an expert opinion rest on an adequate factual foundation and not on assumptions that have no basis in fact; an opinion is inadmissible where there is too great an analytical gap between the data relied upon and the opinion offered. Hyundai Motor Co. v. Duncan, 289 Va. 147, 766 S.E.2d 893 (2015).

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 Va. R. Evid. 2:403 and Virginia decisional law governing improper argument.

3.4 Argument — Numbered Grounds

GROUND 1 — Irrelevant Evidence (Va. R. Evid. 2:401, 2:402).
Movant moves to exclude [describe evidence] because it has no tendency to make any fact in issue more or less probable. Specifically, [________________________________]. Because the evidence is irrelevant, it is inadmissible under Va. R. Evid. 2:402.

GROUND 2 — Unfair Prejudice, Confusion, and Cumulative Evidence (Va. R. Evid. 2:403).
Movant moves to exclude [describe evidence] because any probative value is substantially outweighed by the danger of unfair prejudice, the likelihood of confusing or misleading the trier of fact, or the needless presentation of cumulative evidence. [________________________________].

GROUND 3 — Character and Other Acts (Va. R. Evid. 2:404; 2:403).
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 Va. R. Evid. 2:404, and which, even if offered for a permissible purpose under Rule 2:404(b), should be excluded under Rule 2:403.

GROUND 4 — Improper Impeachment (Va. R. Evid. 2:607–2:609; 2:403).
Movant moves to exclude impeachment by [describe prior conviction / other matter] because it does not satisfy the requirements of Va. R. Evid. 2:609 and/or its probative value on credibility is substantially outweighed by the danger of unfair prejudice under Rule 2:403.

GROUND 5 — Inadmissible Hearsay (Va. R. Evid. 2:801, 2:802).
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 (Va. R. Evid. 2:407; Va. Code § 8.01-418.1).
Movant moves to exclude evidence of [describe post-event repair, change, recall, or policy change] offered to prove negligence or culpable conduct, inadmissible under Va. R. Evid. 2:407.

GROUND 7 — Compromise Offers and Negotiations (Va. R. Evid. 2:408).
Movant moves to exclude all evidence, reference, or argument concerning settlement discussions, offers of compromise, or statements made during negotiations, inadmissible under Va. R. Evid. 2:408.

GROUND 8 — Liability Insurance (Va. R. Evid. 2:411).
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 (Va. R. Evid. 2:702; Va. Code § 8.01-401.3; Duncan).
Movant moves to exclude the opinion testimony of [Expert Name] because, under Va. R. Evid. 2:702 and Va. Code § 8.01-401.3, the opinion is [speculative / lacks an adequate factual foundation / rests on assumptions with no basis in fact / reflects too great an analytical gap between the data and the opinion under Hyundai Motor Co. v. Duncan / opines on the credibility of another witness / constitutes a conclusion of law]. Specifically, [________________________________]. The Court should exclude this testimony.

GROUND 10 — Golden-Rule Argument and Appeals to Sympathy or Passion (Va. R. Evid. 2:403).
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].
[________________________________]

3.5 Conclusion

For the foregoing reasons, Movant respectfully requests that the 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.

DATED: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: ______________________________
[ATTORNEY NAME] (VSB No. [________________])
[Street Address] | [City, Virginia ZIP]
Telephone: [________________] | Email: [________________]
Counsel for [Movant]

4. [PROPOSED] ORDER

VIRGINIA:
IN THE CIRCUIT COURT OF [____________________________] [COUNTY / CITY]

Case No.: [________________]

[PROPOSED] ORDER GRANTING [MOVANT]'S MOTION IN LIMINE NO. [____]

This matter came before the Court on Movant's Motion in Limine. The Court, having considered the Motion, any response, and the arguments of counsel, and good cause appearing, hereby ORDERS:

1. The Motion is GRANTED as set forth below.
2. The following evidence, testimony, argument, and reference is EXCLUDED: [________________________________].
3. [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.
4. 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 ☐
GROUND 11 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐

ENTERED this _____ day of ________________________, 20_____.

______________________________
JUDGE, CIRCUIT COURT OF [____________________________]

I ASK FOR THIS:

______________________________
[ATTORNEY NAME] (VSB No. [________________])
Counsel for [Movant]

5. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing [MOVANT]'S MOTION IN LIMINE NO. [____]; MEMORANDUM OF LAW; [PROPOSED] ORDER was served upon the following via:

☐ Virginia e-filing system (where authorized by the circuit)
☐ U.S. Mail, First Class, postage prepaid
☐ Electronic mail (with consent)
☐ Hand delivery
☐ Facsimile

______________________________
[ATTORNEY NAME], VSB No. [________________]

SOURCES AND REFERENCES

• Rules of the Supreme Court of Virginia, Part Two — Virginia Rules of Evidence: https://www.vacourts.gov/courts/scv/rulesofcourt.pdf
• Va. R. Evid. 2:401, 2:402, 2:403 — Relevance and exclusion for prejudice, confusion, or cumulative evidence
• Va. R. Evid. 2:404 — Character evidence; other crimes, wrongs, or acts
• Va. R. Evid. 2:407 — Subsequent remedial measures (derived from Va. Code § 8.01-418.1)
• Va. R. Evid. 2:408 — Compromise offers and conduct or statements during negotiations
• Va. R. Evid. 2:411 — Liability insurance
• Va. R. Evid. 2:607–2:609 — Impeachment; conviction of crime
• Va. R. Evid. 2:702 — Testimony by experts (derived from Va. Code § 8.01-401.3(A))
• Va. Code § 8.01-401.3 — Opinion testimony and conclusions (expert and lay): https://law.lis.virginia.gov/vacode/title8.01/chapter14/section8.01-401.3/
• Hyundai Motor Co. v. Duncan, 289 Va. 147, 766 S.E.2d 893 (2015) — adequate factual foundation; "analytical gap" exclusion of expert opinion