State Court Motion in Limine - Vermont

MOTION IN LIMINE

(Vermont Superior 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

STATE OF VERMONT
SUPERIOR COURT — [____________________________] UNIT, CIVIL DIVISION

Docket No.: [________________]
Presiding 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: [________________________________], Attorney 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, V.R.C.P. 7, and Vermont Rules of Evidence 401, 402, and 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, confusion of the issues, misleading the jury, undue delay, or 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], Esq. (ERN [________________])
Attorney 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 V.R.E. 401 and 402, and/or that is subject to exclusion under V.R.E. 403 because its probative value is substantially outweighed by the danger of unfair prejudice, confusion, or misleading the jury — 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 (V.R.E. 401, 402). "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. (V.R.E. 401.) Evidence that is not relevant is not admissible. (V.R.E. 402.)

Discretion to Exclude — V.R.E. 403 (the FRE 403 analog). 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. (V.R.E. 403.)

Character and Other Acts (V.R.E. 404). Evidence of a person's character or a trait of character is generally not admissible to prove action in conformity therewith on a particular occasion. (V.R.E. 404(a).) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action 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 404(b) and to exclusion under Rule 403.

Credibility and Impeachment (V.R.E. 608, 609). A witness's character for truthfulness may be addressed under Rule 608. Impeachment by evidence of a conviction of crime 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 (V.R.E. 801, 802). Hearsay is not admissible except as provided by the Vermont Rules of Evidence or by other rules or statutes. (V.R.E. 802.)

Subsequent Remedial Measures (V.R.E. 407). When, after 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 admitted for another purpose (e.g., ownership, control, or feasibility, if controverted, or impeachment).

Compromise and Offers to Compromise (V.R.E. 408). Evidence of furnishing, offering, or promising to furnish — or accepting, offering, or promising to accept — valuable consideration in compromising or attempting to compromise a claim, and conduct or statements made in compromise negotiations, is not admissible to prove liability for, invalidity of, or the amount of a claim.

Liability Insurance (V.R.E. 411). Evidence that a person was or was not insured against liability is not admissible on the issue of whether the person acted negligently or otherwise wrongfully.

Expert Testimony — V.R.E. 702 and the Daubert Standard. Vermont follows Daubert. The Vermont Supreme Court adopted the standard of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in State v. Brooks, 162 Vt. 26, 643 A.2d 226 (1993), and applied it under V.R.E. 702 in 985 Associates, Ltd. v. Daewoo Electronics America, Inc., 2008 VT 14, 183 Vt. 208. Under V.R.E. 702, a qualified expert may testify if scientific, technical, or other specialized knowledge will assist the trier of fact. The trial court acts as a gatekeeper and must ensure the proffered testimony is both relevant and reliable, focusing on the underlying methodology and reasoning rather than the conclusions. The court may consider the non-exclusive Daubert factors: whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; the known or potential rate of error and the existence and maintenance of standards controlling its operation; and whether the theory or technique enjoys general acceptance in the relevant scientific community.

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 V.R.E. 403 and Vermont decisional law governing improper argument.

3.4 Argument — Numbered Grounds

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

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

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

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

GROUND 5 — Inadmissible Hearsay (V.R.E. 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 (V.R.E. 407).
Movant moves to exclude evidence of [describe post-event repair, change, recall, or policy change] offered to prove negligence or culpable conduct, inadmissible under V.R.E. 407.

GROUND 7 — Compromise and Settlement (V.R.E. 408).
Movant moves to exclude all evidence, reference, or argument concerning settlement discussions, offers of compromise, or statements made in negotiation, inadmissible under V.R.E. 408.

GROUND 8 — Liability Insurance (V.R.E. 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 (V.R.E. 702; Daubert; Brooks; Daewoo).
Movant moves to exclude the opinion testimony of [Expert Name] because, under V.R.E. 702 and the Daubert standard adopted in State v. Brooks and applied in 985 Associates, Ltd. v. Daewoo Electronics America, Inc., the testimony is not reliable and/or not relevant: [the methodology cannot be or has not been tested / it has not been peer reviewed / it has an unacceptable rate of error / it lacks controlling standards / it is not generally accepted in the relevant community]. Specifically, [________________________________]. The Court should perform its gatekeeping function and exclude this testimony.

GROUND 10 — Golden-Rule Argument and Appeals to Sympathy or Passion (V.R.E. 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], Esq. (ERN [________________])
[Street Address] | [City, Vermont ZIP]
Telephone: [________________] | Email: [________________]
Attorney for [Movant]

4. [PROPOSED] ORDER

STATE OF VERMONT
SUPERIOR COURT — [____________________________] UNIT, CIVIL DIVISION

Docket No.: [________________]

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

The Court, having considered Movant's Motion in Limine, 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 ☐

IT IS SO ORDERED.

DATED this _____ day of ________________________, 20_____.

______________________________
SUPERIOR COURT JUDGE

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:

☐ Vermont e-filing system (Odyssey File & Serve)
☐ U.S. Mail, First Class, postage prepaid
☐ Electronic mail (with consent)
☐ Hand delivery

______________________________
[ATTORNEY NAME], Esq. (ERN [________________])

SOURCES AND REFERENCES

• Vermont Rules of Evidence (full text): https://www.vermontjudiciary.org/rules
• V.R.E. 401, 402, 403 — Relevance and exclusion for prejudice, confusion, or waste of time
• V.R.E. 404 — Character evidence; other crimes, wrongs, or acts
• V.R.E. 407 — Subsequent remedial measures
• V.R.E. 408 — Compromise and offers to compromise
• V.R.E. 411 — Liability insurance
• V.R.E. 608, 609 — Evidence of character and conduct of witness; impeachment by conviction
• V.R.E. 702 — Testimony by experts
• State v. Brooks, 162 Vt. 26, 643 A.2d 226 (1993) — Vermont adoption of the Daubert standard
• 985 Associates, Ltd. v. Daewoo Electronics America, Inc., 2008 VT 14, 183 Vt. 208 — applying Daubert under V.R.E. 702: https://law.justia.com/cases/vermont/supreme-court/2008/op2006-339.html