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It is the pretrial conference right before trial. You have filed your Motion in Limine. The issue is one of great importance to you.
There is a very damaging piece of evidence which you know opposing counsel is
going to seek to introduce. You want it
excluded and have so moved, in limine.
Your motion is well researched, well reasoned and well
written. You are now before the trial
judge arguing the motion. Despite a
strong argument and making all your points, it is clear by the judge’s
questions or comments that the judge is not persuaded and is about to rule
against you. This is the moment when a lot of inexperienced lawyers will double
down and argue even more vociferously to win the day. But the seasoned lawyer knows there is
another way to win: avoid the dispute
for the moment. Do not let the judge say “no”.
Instead, when you can see that you are probably not going to prevail, it
is far better to offer an alternative to receiving a negative ruling: Avoid this dispute for now.
“Your honor, may I
ask that the Court reserve on this motion.
I would ask that you instruct opposing counsel not to mention it in his
opening and approach sidebar before asking any questions about it. I believe that once you have heard some
evidence, my position will be more clear and it might be easier to rule
then. There will be no prejudice to the
other side in holding off until you have a chance to see the issue in the
context of the evidence.”
Needless to say, this same advice applies when you are
opposing a motion in limine. Suggest to
the judge that you will not mention the particular piece of evidence in your
opening but that you believe that when the judge hears more evidence, the relevance
of that evidence will be more clear.
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