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MOTIONS IN LIMINE1 WHEN, HOW AND WHY TO USE THEM

GENERAL COMMENTS:

Motions in Limine (MIL), when properly utilized, limit issues, shorten trials, focus the claims and defenses on the actual issues, allow time for research and preparation on specific legal issues, encourage settlements and prevent mistrials.

Many practicing attorneys, and even some judges, either do not utilize, or

misuse, motions in limine. The Court must take control of both their use and curtail their misuse. By the same token, attorneys must recognize when and how MILs can be beneficial and when a different “vehicle” might be a better choice.

Florida Rule of Civil Procedure 1.200(a)(6) specifically authorizes the use of

motions in limine in case management by the Court. Selective use by counsel can help eliminate trial issues that should never reach the courtroom, and provide some insight as to what may or may not be admissible in the trial of this cause. TYPES OF MOTIONS IN LIMINE:

Motions in limine can be classified in various categories. One breakdown would be (1) novel legal theories, (2) procedural/evidentiary/demonstrative aid issues, (3) substantive law issues, (4) predicate issues and (5) to use the colloquial, let=s call them Acommon sense issues2.@

1 Any cases or authorities cited in the outline should be confirmed before utilizing as to validity, or continued validity, of the citation and their application to the principle for which they are cited. 2 “Common sense issues “are those matter that are already control by existing case law, and/or are founded in common courtesy standards or common sense or ethical standards.

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While novel legal theories and substantive law issues are generally more

appropriate for determination by summary judgment procedures, some cases may suggest that these matters can be addressed, at least in part, via a Motion in Limine. “Predicate issues” may necessitate the need for a Motion in Limine in an effort to prevent highly prejudicial information from being offered in front of the fact finder until the proper predicate has been laid. Procedural and evidentiary matters, while generally appropriate for MILs, may be more fact specific and may need to be determined at the trial itself based on a particular judge’s procedures and the specific facts and theories involved. ACommon sense issues@ should be addressed by the attorneys themselves without the need for the Court’s authority to be invoked in most instances. Should the Court need to decide these issues, generally case law would control and the imposition of sanctions may be appropriate when agreements should have been reached and have not, absent good cause shown.

Some issues brought under the guise of a motion in limine are issues more closely resembling summary judgment or even directed verdict matters. However, the way a trial proceeds may be, in part, controlled by pre-trial rulings on these matters. Therefore, if an issue deals with substantive law but is brought as a motion in limine, the Court may be required to address the matter to prevent inappropriate or even inadmissible information from being disclosed to the jury. WHAT IS A MOTION IN LIMINE?

A motion made prior to trial, to prevent prejudicial or improper comments or evidence from being mentioned in front of, or shown to, the jury is accomplished by the filing of a motion to limit use. The court, in granting the motion, precludes any party from advising the trier of fact of the existence, or non-existence, of the matter prohibited until further ruling by the court. See, Harris v. Grunow, Jr. and O.R. Golf

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Partners, LTD, 71 So.3d 186, 189 (Fla. 3rd DCA September 28, 2011)[“Motion in Limine; Evidence Regarding Settlements”]

Fla. Stat. 90.104 provides the Court with the ability to prophylactically rule on evidentiary matters before trial. AIf the court has made a definitive ruling on the record admitting or excluding evidence Y before trial…@ the party need not renew its objection or proffer the evidence. Fla. Stat. 90.104(1) AIn cases tried by a jury, a court shall conduct proceedings Y in such a manner as to prevent inadmissible evidence form being suggested to the jury by any means.@ Fla. Stat. 90.104(2)

Appellate courts encourage the use of motions in limine to prevent the

introduction of inadmissible evidence and the possible contamination of the jury.

WHAT IS THE ADVANTAGE TO USING A MOTION IN LIMINE?

By establishing local requirements or simply placing provisions in the Court=s pre-trial order or case management order, the court can require motions in limine to be heard well in advance of trial. Allstate Property & Casualty Insurance Company, v. Lewis, 14 So.3d 1230 (Fla. 1st DCA 2009) [Late filing of MIL (the morning of trial) in part negated the need for new trial even though expert had expressed additional opinions not previously disclosed.] The procedures can require that issues be briefed early in the case, and allow time for the Court to research, consider and analyze the matters, and ensure sufficient hearing time, if necessary, for oral arguments. Such is not the case if these issues come up during the trial with the jury impaneled and while everybody is waiting to proceed.

A court=s ruling can prevent the mention of the prohibited topic during voir dire, opening, in direct examination or cross examination of a witness, lay or expert, and even in closing argument. Ferere v. Shure, 65 So.3d 1141, 1146 (Fla. 4th DCA 2011)

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[Motion in limine properly granted that precluded the plaintiff from referencing the alleged alteration or concealment of records] Witnesses called by either counsel are also required to be admonished that they should not address the prohibited subject. Counsel would be hard pressed to argue that they were unaware of the prohibition at, during, or after trial since it was ruled upon at a hearing after notice and an opportunity to be heard by all parties prior to trial. Spalding v. Zatz, 70 So.3d 692 (Fla. 5th DCA Sept. 2, 2011) [Filing of Motion in Limine by moving party made it clear issue was not a surprise to party that moved for a mistrial.] Generally, when heard prior to the trial, a written order should also be created and made a part of the Court file.

WHEN SHOULD A MOTION IN LIMINE BE FILED AND HEARD? The attorney should check with the judge in front of whom they are appearing. Practices vary drastically from judge to judge and circuit to circuit. Some judges will hear motions in limine the morning of trial; others require they be heard well before trial and some even before pretrial. Sometimes, the rulings on motions in limine will go a long way towards assisting in resolving a case. Early rulings can assist a case to settle when the parties are made aware of whether or not certain pieces of evidence will be admitted at trial, or theories of liability or defenses will remain viable. Practices vary as to when to file Motions in Limine. Some attorneys wait until just before trial to file a massive list of Motions in Limine. Others will file them as the case proceeds. It must be remembered that the filing of a motion in limine is not the same thing as having the motion in limine set for hearing and heard. Motions in limine that deal with significant issues should be set for hearing as soon as they are filed, briefed and heard and a ruling obtained as early as possible. Once the motion is filed, either party can set the motion for hearing.

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PRACTICE TIP #1: In developing one’s order of proof for trial, it is critical to know who will be testifying and subject matter about which they will testify. Motions in limine may well affect both who and what will be admitted and thereby modify the order of proof the attorney will be following. The earlier the attorney can ascertain what will be allowed and what will not, the more precise a lawyer can be in crafting his/her presentation. PROVISIONAL VERSUS FINAL RULINGS:

Rulings on motions in limine are generally not, and should not be, final or definitive rulings or orders3 as trials are dynamic events with ever changing evidentiary predicates that can necessitate the admission of evidence that was otherwise deemed inadmissible or make what was previously presumed admissible evidence, inadmissible. See Swan v. Florida Farm Bureau Ins. Co., 404 So.2d 802 (Fla. 5th DCA 1981); McCallister v. State, 779 So.2d 615 (Fla. 5th DCA 2001) [noting the Ashifting sands of the trialY.@]

Absent some critical reason to do so, at least in this author=s opinion, rulings

on motions in limine should almost always be non-final or provisional rulings. The litigants should be advised on the record of this at the time the rulings are made, to wit:

AAll counsel are advised that the rulings the Court is about to make on the Motions in Limine before it are non-final, provisional rulings subject to modification at trial if the evidentiary foundation changes. If during the

3 Even though Fla. Stat. '90.104(1) provides that Adefinitive rulings on the record admitting or excluding evidence@ may negate the necessity of renewing an objection, great caution should be used in relying on this provision as most rulings are provisional and non-final.

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course of the trial, counsel believes that the situation has changed, counsel should seek permission to approach the bench, and once granted advise the Court, out of the presence of the jury, of the party’s request and the basis therefore.@

Similar language should be contained in any written order ensuring that the attorneys know that the orders of the court on these motions in limine are non-final, provisional orders. Byrd v. BT Foods, Inc., 26 So.3d 600, 604 FN4 (Fla. 4th DCA 2010); [ USAA Casualty Insurance Company, v. Allen, 17 So.3d 1270 (Fla. 4th DCA 2009) [Objection not preserved for appeal when order denying MIL was not definitive, and no objection was made when evidence was offered.] Fla. Stat. §90.104(1) provides that if a definitive ruling is made, the “…party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Conversely, if the ruling is non-final or provisional objections must be renewed and offers of proof made. PRACTICE TIP #2: Unfortunately, not only attorney but also many judges may not appreciate the difference between a final and a provisional ruling on a motion in limine. The consequences are extremely significant. It may be necessary to clarify with the Court whether that court’s rulings are provisional or final. If an order is created the practitioner should make sure it correctly sets out the status of the order correctly. The burden is on the attorney to make certain (1) there is an order entered or ruling made on the record, and (2) that the submitted order correctly sets forth the type of ruling entered. FORM AND CONTENT OF MOTIONS AND RULINGS:

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In that Motions in Limine seek to prevent or limit the admissibility of testimony, evidence or even argument or comment on a topic, the motions and resulting orders should be tailored very carefully and narrowly. If it involves a witness, the specific witness should be identified. See Kalvac, Infra. If the motion is directed to a specific incident, comment, observation, opinion, or statement, it should be set forth with specificity. General requests, lacking the requisite specificity, will not usually be entertained by the Court absent extraordinary circumstances. PRACTICE TIP #3: A detailed motion setting for the specific phrase or phrases and/or subject area is extremely helpful to the Court in tailoring its order. Further, a clear statement of the reason for the motion, the legal basis upon which the moving party is relying and a statement of the resulting incurable prejudice set forth in the motion will go a long way toward both having the motion granted and, if granted, sustained on appeal.

When entering an order on a motion in limine, it should be (1) specific as to the item requested, (2) relate back to the specific paragraph in the motion, (3) state the exact ruling of the Court, and (4) state whether it is provisional or final. Kalvac v. Waller, 980 So.2d 593 (Fla. 3rd DCA 2008) [Since MIL sought to preclude Aduplicative testimony@ but was without reference to any specific number of witnesses and in that it was never called up for hearing, the trial court=s denial of the motion was affirmed.]

MILs should be timely scheduled for hearings and each specific MIL ruled upon with a clear indication of the ruling. Hearings can be time consuming depending on the number of MILs filed and the procedure the Court employs for hearing the motions. (See ARecommendation@ supra.) Therefore, the parties need to have clear direction as to when courts will hear the MILs, i.e. short matters, scheduled hearings, discovery

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dockets, the morning of trial, at pretrial, etc. Arce v. Wackenhut Corporation, 40 So.3d 813, 818 (Fla. 3rd DCA 2010) [Judge Cortinas dissent]

The order should be drafted carefully, and if a detailed finding is not placed on the record, it may be important to supply the underlying reasoning in the written order. The appellate court reviews Motions in limine on an abuse of discretion standard. Morton=s of Chicago/North Miami Beach, LLC. v. Bermundez, 53 So.3d 369 (Fla. 3rd DCA 2011). SANCTIONS:

Sanctions for violations of a Motion in Limine can involve an admonition to the jury to disregard, or a curative instruction to the jury, as well as an instruction to the attorney or the witness, usually out of the presence of the jury, if it appears the violation was unintentional. Depending on the degree of damage created by the violation, a mistrial can be declared if a proper motion is made. Presumptively all other remedies are also available such as striking defenses, directed verdicts, and even limiting elements of damages, but this is unclear. See Fischman v. Suen, 672 So.2d 644 (Fla. 4th DCA 1996) Of course, if the Court should find that such violation was intentional, and with knowledge of the Court=s prior orders, contempt proceedings may be appropriate.

PRACTICE TIP # 4: If the party is requesting a sanction such as dismissal of the cause of action or the striking of defenses and entering a default judgment, counsel should remind the court of the need to conduct a Kozel analysis especially when the violation appears to be by the attorney. Kozel v. Ostendorf, D.P.M., 629 So.2d 817 (Fla. 1993) [Clarified Jan. 13, 1994]

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It is incumbent on the part of the Court, if the matter is properly brought to the attention of the Court, to take some corrective action or state on the record that no such action is necessary. Whatever the Court contemplates doing or not doing should be announced to the attorneys first, out of the presence of the jury, and either acquiescence in or the objection to the sanction be set forth by counsel before proceeding.

1 - NOVEL “LEGAL” THEORIES4:

Areas that can easily result in a mistrial or reversible error are new or novel

legal issues or theories that could and should have been previously raised before the trial by summary judgment motions, but which have not been so addressed. The Court finds itself addressing an issue for the first time in the middle of trial with neither the time nor the resources to devote to the issue. The Court is faced with a jury panel which can not be placed Aon hold@ and witnesses under subpoena ready to testify who will have to wait. Frye issues are an example of a specialized motion in limine even though it would not necessarily be a substitute for an actual Frye hearing. Janssen Pharmaceutical Products, L.P. v. Hodgemire, 49 So.3d 767, 771 (Fla. 5th DCA 2010)

A vehicle to address these issues can be, in part, a motion in limine. If the Court requires early filing of these motions, the Court can, hopefully, invoke the assistance of the staff attorney5 and thereby obtain an in depth and thoughtful analysis 4 Clearly the preferred method of addressing purely legal issues is not a Motion in Limine but is a Motion

for Summary Judgment. However, the procedural and evidentiary application of these matters can be

addressed through a motion in limine. 5 Unfortunately, the availability of staff attorneys to assist the Court has been severely limited by budget restraints. Many times the Court will have to rely upon briefs filed by the parties. Still, having these matters heard prior to trial by either summary judgments ( a more appropriate procedure for these types of issues) or motions in limine allow the Court to be better informed when making these rulings.

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of the issue allowing an informed ruling by the Court. These issues can involve complex legal issues, i.e., is a Ablog@ type of internet magazine an Aother medium@ and covered under Fla. Stat. 770.01, or is amended Fla. Stat. 768.0710 procedural or substantive and if so is it retroactive and is it applicable in this premises liability case before the Court?

A party, for example, may be intending to offer all of the medical bills incurred by their client into evidence even though some have been paid by group insurance without a right to subrogation, and some by governmental programs, such as Medicare, and some others still may have been written off by the health care provider. A motion in limine filed by the defense can force the parties to address these “collateral source” issues in advance of trial and obtain a ruling from the court before the jury is impaneled. See, Nationwide Mutual Fire Insurance Company v. Harrell, 53 So.3d 1084 (Fla. 1st DCA 2011) Collaterally, early resolution of issues of this nature can lead to resolution of the under lying case. For example, a ruling determining that the plaintiff will be allowed to Aboard@ (place before the jury) $550,000.00 in medical bills as opposed to $75,000 can go a long way to getting a case resolved.

2 - PROCEDURAL/EVIDENTIARY/DEMONSTRATIVE AIDS ISSUES:

Some issues are purely evidentiary and not appropriate for motions in limine. Evidentiary issues, as the name implies, not only involve questions of admissible evidence but also are contingent upon the predicate evidence that comes in for a proper determination on the admissibility and the relevancy of the offered evidence. Some motions, however, are most appropriate for early determination via a motion in limine. Where a predicate must be laid for a particular piece or type of evidence to be admitted, and a party can show that such predicate has not, or more appropriately, can not be presented, a party moving for a motion in limine can prevent the mention of such evidence (in voir dire or opening) to the jury, at least until such predicate has

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been laid. Villasenor v. Martinez, 991 So.2d 433 (Fla. 5th DCA 2008) [Court properly denied MIL to exclude evidence of plaintiff=s status as an illegal alien.]

The same holds true for anticipated testimony especially if it involves expert testimony. Such testimony may be contingent upon the expert having certain qualifications [see, i.e., Fla. Stat. 766.102(5)], or upon a showing that the expert does not have sufficient underlying information about the matters to which he/she is going to testify. See, for example, United Automobile Insurance Company v. Garrido, 22 So.3d 120 (Fla. 3rd DCA 2009) [MIL to prevent medical opinion from being offered.]

Expert opinions that were not previously disclosed in discovery depositions

and/or written reports may be attacked with a request to limit an expert to the opinions he/she said they were going to provide and to prevent previously undisclosed opinions from being presented to the jury. See, Cascanet v. Allen, 36 Fla. L. Weekly D1776 (Fla. 5th DCA Aug. 12, 2011) [Non-final Opinion].

Anticipated comments during both opening and closing routinely are a breeding ground for improper comments on the evidence or the law. Some attorneys have a known history for injecting improper comments into opening statements or closing arguments. An experienced attorney may well file a motion in limine directed to those arguments. Consideration of, and possible granting of the motions, can not only prevent reversible error, but also, if it occurs serve as a basis to grant a new trial if appropriate, or even serve as the foundation for contempt actions, if necessary. Linzy v. Rayburn, 58 So.3d 424, 427 (Fla. 1st DCA 2011) [Ain light of the parties motions in limine made before trial, defense counsel=s statements during his opening statement, and the plaintiffs= motion in limine made during trial, defense counsel=s statements during his closing argument were improper.@]

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The use of exhibits and/or demonstrative aids can also be challenged via the filing of a motion in limine. If it is anticipated that opposing counsel might seek to offer exhibits that may not be ultimately admissible, or use demonstrative aids that are objectionable, a motion in limine will bring these matters before the Court for pre-trial rulings. Any possible jury contamination is eliminated by this prophylactic motion. Mitsubishi Motors Corporation v. LaLiberte, 52 So.3d 31 (Fla. 4th DCA 2011)

3-SUBSTANTIVE ISSUES:

Most substantive issues are more appropriate for summary judgment than a motion in limine. Legal issues are generally matters for the Court and will almost never be presented to the fact finder during the course of the trial. Unfortunately, many attorneys will couch summary judgment issues in terms of motions in limine. Lack of the predicate time frame (20 days notice), lack of proper and timely evidence (affidavits, depositions timely filed with motion), or just laziness will result in the filing of a motion in limine when in fact it is purely an issue of law for the Court and should be presented by a Motion for Summary Judgment.

Included in this sub-topic could be issues of un-pled and/or unprovable theories of liability or defenses or even unnamed parties. For example, after the time has expired to name Fabre defendants, a party may ask the court to rule in limine that no non-party can be Ablamed@ as being the negligent entity. Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) While a motion for summary judgment could have been filed as to this issue, in some circumstances, the MIL may be directed towards preventing the defendant from alleging in opening statement or arguing in closing statement that some other unnamed party is the culprit when it is apparent that no evident will be put forth on that issue.

4- PREDICATE ISSUES:

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By far one of the most appropriate uses of motions in limine will involve an

assertion that the party will not or can not establish the appropriate predicate for a certain type of evidence or testimony to be admitted and, therefore, the court should limit any comment on the existence of, or lack of existence of, this evidence until it is shown that a legal predicate has been laid. Issues such as statements (“the traffic light was not working”), observations and opinions (“the truck turned the corner without the driver looking”), guesses (“I don=t know but it seemed like the car was going 70 mph and I think it was a school zone”), and even suppositions (“how else could it have happened”) can be addressed and the attorneys cautioned that no mention should be made of these subjects until the court rules on the admissibility of each of these issues out of the presence of the jury.

PRACTICE TIP # 5: Counsel needs to remember to instruct their co-counsel, clients, witnesses and even experts (retained and otherwise) about any rulings that are made on motions in limine as any violation will be attributed to counsel of record. It must be remembered that the violation, if it occurs would be a violation of a court order and could subject the offender and possibly the attorney to contempt.

Some rulings will have to be, or should be, deferred until the actual trial,

especially were there is no potential of the mention of the non-admissible information. Others may require an informal, or possibly even a formal, proffer of the predicate or a showing that such predicate would not be necessary.

5-ACOMMON SENSE ISSUES:@

While maybe a mischaracterization of this category of motions, these are the

most frustrating for the Court. The majority of these issues are matters that are

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important but that should not be in dispute. These matters have been resolved by case law, procedural rules, ethics opinions, professionalism standards or just plain common sense. The filing of these motions is not the problem. It is the noticing of these matters for hearings and wasting the Court=s limited resources on matters that should be agreed upon by all attorneys. It is not unusual for attorneys to file motions in limine numbering up to and including fifty or more. Of the fifty, it would be unusual if the parties could not agree on as many as 45, if not all of them without the involvement of the Court.

The problem arises when parties do not meet and confer prior to (1) filing the motions and/or (2) noticing the matter for hearing and/or (3) appearing at the hearing. The Court, in an effort to be prepared, will be required to review all of the submitted motions and prepare for the hearing only to learn at the hearing that counsel has agreed to all, or almost all, outside the hearing room. For this reason some courts are issuing orders directing counsel to meet and confer on motions in limine that have been filed. The order requires agreed orders to be prepared on those items to which there is an agreement and written memorandums with case law citations on those to which there is no agreement. Many of these matters may be decided by written argument if so indicated in the specific order directed to motions in limine. (See, Attachment AA@ for a sample order from Judge John Marshall Kest)

CONCLUDING SUGGESTIONS: A properly drafted and sufficiently focused Motion in Limine is an excellent tool

to essentially remove unfounded affirmative defenses that can not be proven, and other items that have no or limited relevancy to the anticipated trial issues. The MIL can also eliminate the introduction of testimony or specific comments that otherwise would result in the need for a mistrial or at the very least, a curative instruction which in fact really may not “cure” the damage. However, motions in limine are not meant to

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eliminate the need for the filing of summary judgment motions on purely legal issues. Further, motions in limine are not meant to take the place of cooperation or the application of professionalism to the practice of law.

PROFESSIONALISM POINTER: The vast majority of issues that are brought before the Court in motions in limine are really matters of common courtesy and professionalism. Attorneys should be able to resolve these matters amongst themselves without even the filing of a Motion of Limine much less having to present it to a judge. Every effort should be made to meet and confer with counsel in advance of trial so each party can acknowledge the “rules” and hopefully agree to abide by them. It is only when this does not happen that the Court must get involved.

Motions in limine, therefore, have their place. Some evidentiary issues that are

not subject to summary judgment procedures and many predicate issues and potentially prejudicial issues are appropriate to be presented to the court, after consultation with opposing counsel and attempted resolution. However, motions in limine and hearings thereon is not the proper vehicle to resolves posturing problems, “spats” between counsel, or common sense requests for consensus agreements as to issues that professionalism, common courtesy and establish law suggest should be resolved without the necessity of a hearing.

Judge John Marshall Kest April 8, 20126 Copyrighted

6 Comments, recommendations, “practice tips” and “professionalism pointers” are solely those of

Judge John Kest. When appearing in front of a specific judge, each attorney should check with that judge for the individual procedures, policies and requirements of that judicial division or judge.

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Attachments:

1- Attachment AA@ - Order Establishing Procedures for Motions in Limine Hearings 2- Attachment AB@ - Subject Frequently Contained in Motions in Limine

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ATTACHMENT AA@

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

Case No.:

Plaintiff, v. SAMPLE ORDER

Defendant, _____________________________________/

ORDER ESTABLISHING PROCEDURES FOR

HEARINGS AND RULINGS ON MOTIONS IN LIMINE

THIS MATTER came before the Court in Chambers and as part of, and as a

supplement to, the Order On Case Management Conference (OCMC) and/or

Uniform Order Setting Case for Jury Trial; Pre-trial Conference and Requiring

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Pretrial Matters to be Completed (UNIFORM ORDER), and the Court finding that

certain procedures will expedite and simplify the rulings on Motions in Limine, and

assist in the administration of justice in this division, it is Order that:

1- The any and all Motions in Limine from any party must be filed no later than

the time frame set forth in the OCMC and/or UNIFORM ORDER unless extended

by this Court.

2- Before setting the Motions in Limine for hearing before the Court, counsel,

not support nor paralegal personnel, must meet either by telephone and/or in

person and confer on each and every requested Motion in Limine.

3- Subsequent to the meeting(s) counsel filing the Motion in Limine must

prepare and file a stipulation confirming in writing that they have conferred and the

agreements on the specific Motions in Limine as to each.

4- After the meet and confer requirement has been satisfied, counsel filing the

Motions in Limine shall submit to the Court a written memorandum of law, with

supporting case law, (1) identifying each item in the Motion(s) in Limine that has

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not been agreed to by opposing counsel at the meet and confer and (2) setting

forth any arguments and case law in support of the disputed Motion(s) in Limine.

Opposing counsel will have five (5) business days to file a written response if they

wish. The Court will review the memorandums and responses thereto, if any, and

either (1) rule on the specifically disputed Motion(s) in Limine without a hearing or

(2) direct that a hearing be set on the disputed Motion in Limine. The moving

party must send out the notice of hearing and specifically set forth in the ANotice@

the specific matters that remain in dispute and that will be submitted to the Court

for resolution. No additional case law will be considered that has not been set forth

in the previously submitted memorandums or responses unless that case law was

issued subsequent to the submittal of the memorandums or responses.

5- Any Motions in Limine not timely filed and/or not discussed at the meet and

confer, and if unresolved, not set for hearing will be considered abandoned.

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6- The party filing the Motion in Limine will prepare the proposed order on any

contested hearing reflecting the Court=s rulings and submit same to the Court within

five (5) days of the hearing.

7- All counsel are reminded that the Court recognizes that rulings on Motions in

Limine are non-final (provisional) orders subject to modification during trial as

evidence is presented.

DONE AND ORDERED in Orlando, Orange County, Florida this ____ day of

_________, 2011.

JOHN MARSHALL KEST, CIRCUIT COURT JUDGE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by U. S. Mail to ______________________________________ and _______________________________ this ______ day of ___________, 2011.

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_____________________________________ Judicial Assistant

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ATTACHMENT AB@

Subjects frequently contained in Motions in Limine 1- Reference to overcrowded courtrooms B Stokes v. Wet-N-Wild, Inc., 523 So.2d 181

(Fla. 5th DCA 1988 2- Reference to insurance crisis - Davidoff v. Segert, 551 So.2d 1274 (Fla. 4th DCA

1989) 3- Reference to recovery not subject to income tax. Good Samaritan Hospital v. Saylor,

495 So.2d 782 (Fla. 4th DCA 1986) 4- When attorney was hired. Watson v. Builders Square, 563 So.2d 721 (Fla. 4th DCA

1990) 5- Did attorney refer client to a physician. Burt v. Geico, 603 So.2d 125 (Fla. 2nd DCA

1992) 6- Comments on why opposing counsel did not call certain witnesses. Riggins v. Mariner

Boatworks, Inc. 545 So.2d 430 (Fla. 2nd DCA 1989) 7- Commenting on Compulsory Medical Examination (CME) being an Aindependent

exam.@ Fla. R. Civ. P. 1.360. 8- CME not commenting on other experts treating client. Carver v. Orange County, 444

So.2d 452 (Fla. 5th DCA 1983)

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9- CME doctor not render personal opinions about the validity or merits of case or

credibility of the client. Wasden v. Seaboard Coast Line Railroad Co., 474 So.2d 825 (Fla. 2nd DCA 1985)

10- Attorney not degrade, humiliate or demean client or attorney or call a liar or greedy.

Stokes, Supra. 11- Attorneys should not render personal opinions on the case or credibility of witnesses.

Silva v. Nightingale, 619 So.2d 4 (Fla. 5th DCA 1993); Rules Regulating the Florida Bar, Rule 4-3-4(e)

12- Prohibit comments on other claims or settlements with other parties. Samick Corp., v.

Jackson, 645 So.2d 1095 (Fla. 4th DCA 1994) 13- No reference to Asending a message@ or to act as the Aconscience of the

community@ Eagle-Picher Industries v. Cox 481 So.2d 517 (Fla. 3rd DCA 1985) 14- No mention of possible effect of this verdict upon insurance rates or premiums charged

. Davidoff v. Segret, 551 So.2d 1274 (Fla. 4th DCA 1989) 15- Experts may not bolster opinions with articles. Erwin v. Todd, 699 So.2d 275 (Fla. 5th

DCA 1997) 16- Opinions not be solicited from experts outside their area of expertise. Sea Fresh

Frozen Products, Inc. v. Abdin, 411 So.2d 218 (Fla. 5th DCA 1982) 17- No mention of the amount of insurance available. Auto Owners Insurance Company v.

Dewberry, 383 So.2d 1109 (Fla. 1st DCA 1980)

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18- No reference to frivolous lawsuits and/or trial lawyers as a cause of the litigation

problem in our society. Bell South Human Resources Administration v. Colatarci, 641 So.2d 427 (Fla. 4th DCA 1994)