State Court Motion in Limine - Wisconsin

MOTION IN LIMINE

(State of Wisconsin — Circuit Court — 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 Evidence Sought to Be Excluded
   4.3 Legal Standard
   4.4 Argument — Numbered Grounds
   4.5 Request to Instruct Counsel and Admonish Witnesses
   4.6 Conclusion

5. Certificate of Service

6. Exhibit A — Proposed Order

1. CAPTION

STATE OF WISCONSIN — CIRCUIT COURT — [________________] COUNTY

Case No. [________________]

Judge: Hon. [________________]
Branch: [________________]

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

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

2. NOTICE OF MOTION AND HEARING

TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD

PLEASE TAKE NOTICE that on [__/__/____] at [________________], or as soon thereafter as counsel may be heard, in Branch [________________] of the [________________] County Circuit Court, located at [Courthouse Address, City, Wisconsin], 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 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 conduct of trial and Wis. Stat. §§ 904.01, 904.02, and 904.03, together with the additional authorities set forth below, on the grounds that the evidence is irrelevant and/or its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The Motion is based on this Notice, the accompanying Memorandum of Law, the pleadings and papers on file, the Affidavit/Declaration of [Name] filed herewith (if applicable), and any argument of counsel the Court may entertain.

DATED: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

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

3. MOTION IN LIMINE

[Plaintiff / Defendant] [________________] ("Movant"), by and through undersigned counsel, respectfully moves this Court, pursuant to Wis. Stat. §§ 904.01, 904.02, and 904.03, and the additional authorities set forth below, for an order in limine excluding the evidence and matters identified herein and prohibiting any reference to them before the jury without prior leave of Court. In support, Movant relies upon the accompanying Memorandum of Law.

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 / product liability / breach of contract]. 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 Wis. Stat. §§ 904.01 and 904.02, and/or subject to exclusion under § 904.03 because its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and 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.

4.2 The Evidence Sought to Be Excluded

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

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

4.3 Legal Standard

Relevance (§§ 904.01, 904.02). 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. (Wis. Stat. § 904.01.) Evidence that is not relevant is not admissible. (Wis. Stat. § 904.02.)

Discretion to Exclude — § 904.03 (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. (Wis. Stat. § 904.03.)

Character and Other Acts (§ 904.04). Evidence of a person's character or a trait of character is generally not admissible to prove that the person acted in conformity therewith on a particular occasion. (Wis. Stat. § 904.04(1).) Evidence of other crimes, wrongs, or acts is not admissible to prove character in order to show conduct in conformity, but may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (Wis. Stat. § 904.04(2).) Such evidence remains subject to § 904.03.

Impeachment (§§ 906.08, 906.09). A witness's credibility may be attacked or supported as provided by Wis. Stat. § 906.08, and impeachment by evidence of conviction of a crime is governed by § 906.09, subject to § 904.03 balancing.

Hearsay (§§ 908.01–908.08). Hearsay is not admissible except as provided by the rules or by other statute. (Wis. Stat. § 908.02.)

Subsequent Remedial Measures (§ 904.07). 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.

Compromise and Offers to Compromise (§ 904.08). 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 or invalidity of the claim or its amount.

Liability Insurance (§ 904.11). 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 — § 907.02 and the Daubert Standard. Wisconsin adopted the Daubert standard by statute, effective February 1, 2011. Under Wis. Stat. § 907.02(1), if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. (Wis. Stat. § 907.02(1).) The circuit court acts as a gatekeeper to ensure expert testimony is both relevant and reliable. (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); State v. Giese, 2014 WI App 92.)

Golden-Rule Argument and 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 § 904.03 and Wisconsin decisional law governing attorney misconduct.

4.4 Argument — Numbered Grounds

GROUND 1 — Irrelevant Evidence (§§ 904.01, 904.02).
Movant moves to exclude [describe evidence] because it has no tendency to make any fact of consequence more or less probable and is therefore inadmissible. Specifically, [________________________________].

GROUND 2 — Unfair Prejudice, Confusion, and Waste of Time (§ 904.03).
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, and undue delay. [________________________________].

GROUND 3 — Character and Other Acts (§ 904.04).
Movant moves to exclude evidence, reference, or argument concerning [describe prior bad acts / character], offered only to show the [party/witness] acted in conformity with a disposition, inadmissible under § 904.04 and, even if offered for a permitted purpose, excludable under § 904.03.

GROUND 4 — Improper Impeachment (§§ 906.08, 906.09; § 904.03).
Movant moves to exclude impeachment by [describe prior conviction / other matter] because it does not satisfy §§ 906.08/906.09 and/or its probative value on credibility is substantially outweighed by the danger of unfair prejudice under § 904.03.

GROUND 5 — Inadmissible Hearsay (§§ 908.01–908.08).
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 or exclusion applies.

GROUND 6 — Subsequent Remedial Measures (§ 904.07).
Movant moves to exclude evidence of [describe post-event repair, change, recall, or policy change] offered to prove negligence or culpable conduct, inadmissible under § 904.07.

GROUND 7 — Compromise and Offers to Compromise (§ 904.08).
Movant moves to exclude all evidence, reference, or argument concerning settlement discussions, offers of compromise, or statements made in negotiation, inadmissible under § 904.08.

GROUND 8 — Liability Insurance (§ 904.11).
Movant moves to exclude any evidence, reference, or argument that any party was or was not covered by liability insurance, inadmissible on the issue of fault under § 904.11 and unduly prejudicial under § 904.03.

GROUND 9 — Inadmissible / Unreliable Expert Testimony (§ 907.02; Daubert).
Movant moves to exclude the opinion testimony of [Expert Name] because, under Wis. Stat. § 907.02(1) and the Daubert standard, the opinion is not based on sufficient facts or data, is not the product of reliable principles and methods, and/or the expert has not reliably applied reliable principles and methods to the facts of the case. Specifically, [________________________________]. The Court should exercise its gatekeeping function and exclude this testimony.

GROUND 10 — Golden-Rule Argument and Appeals to Sympathy or Passion (§ 904.03).
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].
[________________________________]

4.5 Request to Instruct Counsel and Admonish Witnesses

Movant further requests that the Court direct counsel for [Opposing Party] to instruct and admonish each of its witnesses, before they testify, not to mention, refer to, or attempt to convey to the jury — directly or indirectly — any of the excluded matters, and to refrain from offering or eliciting such matters during voir dire, opening statement, examination of witnesses, or closing argument, without first approaching the bench and obtaining leave of Court outside the presence and hearing of the jury.

4.6 Conclusion

For the foregoing reasons, Movant respectfully requests that the Court GRANT this Motion in Limine and enter the accompanying Proposed Order.

DATED: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: ______________________________
[ATTORNEY NAME]
State Bar No. [________________]
Attorneys for [Movant]

5. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a copy of the foregoing Notice of Motion, Motion in Limine, Memorandum of Law, and Proposed Order was served upon all counsel of record via the Wisconsin Court eFiling System, which constitutes service under Wis. Stat. § 801.14(2), or as otherwise indicated below:

☐ Wisconsin Court eFiling System
☐ E-mail (per agreement) to: [________________]
☐ U.S. Mail, postage prepaid, addressed to: [________________]

[Opposing Counsel Name]
[Firm Name]
[Address]
[City, State ZIP]
[Email]

______________________________
[Attorney Name]
State Bar No. [________________]

EXHIBIT A — PROPOSED ORDER

STATE OF WISCONSIN — CIRCUIT COURT — [________________] COUNTY

Case No. [________________]

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

The Court, having considered Movant's Motion in Limine, any opposition, the supporting and opposing papers, and the arguments of counsel, and being fully advised in the premises,

IT IS HEREBY ORDERED that:

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____.

______________________________
Hon. [JUDGE'S NAME]
[Branch ________________], [________________] County Circuit Court

SOURCES AND REFERENCES

• Wis. Stat. § 904.01 — Definition of relevant evidence: https://docs.legis.wisconsin.gov/statutes/statutes/904
• Wis. Stat. § 904.02 — Relevant evidence generally admissible; irrelevant evidence inadmissible
• Wis. Stat. § 904.03 — Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
• Wis. Stat. § 904.04 — Character evidence not admissible to prove conduct; exceptions; other crimes
• Wis. Stat. § 904.07 — Subsequent remedial measures; § 904.08 — Compromise and offers to compromise; § 904.11 — Liability insurance
• Wis. Stat. §§ 906.08, 906.09 — Impeachment; conviction of crime
• Wis. Stat. § 907.02 — Testimony by experts (Daubert standard): https://docs.legis.wisconsin.gov/statutes/statutes/907/02
• Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (gatekeeping/reliability standard)
• State v. Giese, 2014 WI App 92 (applying § 907.02 Daubert in Wisconsin)
• 2011 Wis. Act 2 (adopting Daubert via amended § 907.02, eff. Feb. 1, 2011)