In American legal proceedings there are debates of law and facts. The fact debates can be illustrated easily enough.

Judge David Langham

Imagine that two motorists are involved in a vehicle collision at an intersection. Each claims that his signal was green and therefore had the right of way. The fact to be determined is who had the green light.

Both may assert they had it, but after adducing evidence on this topic, someone will have to make a finding of fact deciding which actually had the green light. The finder of fact determines which driver had the green light.

There are also debates of law. But those only describe "what was so" — that is, was the light was green, yellow or red? The law must then be applied to that fact, and someone must determine "so what" — that is, what does the law say about the driver with the green light and the right of way, and the other driver who did not?  

In a large volume of cases, these two roles are separated. A judge presides over the dispute and generally makes decisions about the law. She or he decides disputes about who may testify, what documents are admissible, what may be too inflammatory to be admitted even if it is in fact relevant. But those fact decisions — whether a particular driver had the green light — are very often decided separately, collectively, by a jury.

Though the judge in that setting will provide instructions on the law to the jury, the jury will make various ultimate decisions about applying the law in reaching its ultimate conclusions as well. 

By the time a case reaches trial, the judge may have presided over numerous preliminary disputes between the parties, usually raised by motions. The judge may be reasonably familiar with the case, the specific disputes and the lawyers involved. The jury, conversely, will be selected shortly before presentation of evidence begins.

Within at least a somewhat confined period of time, it will learn the admissible facts and evidence, make its determinations and then be dismissed. Any post-judgement issues will again be the responsibility of the judge. 

It is critical that the jury, as finder of fact, is afforded access to the admissible evidence in the case. From that evidence it will collectively, and hopefully collegially, make its factual determinations. However, it is also important and sometimes critical that the jury is shielded from information that is not admissible for whatever reason. This may be because the information lacks trustworthiness for a variety of reasons or that the evidence is so inflammatory it is inappropriate (often phrased "more prejudicial than probative"). 

There exists therefore a vehicle by which lawyers can bring the judge's attention to disputes about evidence prior to trial. It is among the many types of motions that may be determined by the judge in the course of developing a case for trial. It is called a motion in limine. 

LegalDictionary.net defines it this way: "A motion in limine is a motion made to the court before a jury has been selected in either a civil or a criminal case. Motions in limine ask the court to order the opposing party, its counsel and witnesses not to talk about, or even mention, certain facts or evidence in the presence or hearing of the jury."

By definition, a motion in limine is about the jury.

In order to succeed — that is, in order for the judge to grant a party's motion in limine — the evidence that is seen as objectionable will have to be described to the presiding judge. The judge will likely have to review and evaluate that evidence in significant detail. Once the judge understands the substance, purpose of, and objection to that evidence, the judge decides if the jury should in fact hear or see that evidence. 

But, not all legal proceedings involve a jury. A great many trials are conducted only by a judge, referred to as bench trials. In such proceedings, the judge fulfills a dual role of making the legal determinations and simultaneously being the finder of fact. Among the proceedings that generally involve bench trials are workers' compensation proceedings in the vast majority of American states. 

In a bench trial proceeding, one might validly question the value, purpose or even propriety of a motion in limine. This may seem obvious. Without a jury to protect from the information, what is the point? The Florida appellate courts have described that “The purpose of a motion in limine is to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial.”

The purpose of the tool is to shield the finder of fact from inappropriate or inadmissible evidence. However, in a workers' compensation or other bench proceeding, the only way to have a motion in limine granted would be to show that very evidence to the finder of fact (the judge).

The idea of showing a judge evidence for the purpose of convincing him or her that he or she should not even hear the evidence mentioned is antithetical: "Look at this, this is bad, look at this carefully, then please enter an order that prevents us from even mentioning to you what we just showed you and told you all about." 

It can be confidently said that a motion in limine in a workers' compensation proceeding (without a jury) is neither effective for its definitional purpose (shielding the jury) nor logical. Perhaps there will be instances in which some evidence is inflammatory, embarrassing or too prejudicial. It may be that such evidence should be excluded on the basis of being more prejudicial than probative. 

However, that decision can generally be raised for determination at trial. In general, the topic is not one for a motion in limine. 

That does not mean that a motion might not be required regarding particular evidence. In preparation for trial, it may be imminently helpful to all parties to have an understanding of what evidence will be admitted and what will be excluded. However, those issues are more aptly considered by the trial judge through a motion for evidentiary determination, a motion to strike or a motion to exclude evidence, or a motion to admit evidence.

The point there is not preventing mentioning the evidence in front of the judge (in limine), but gaining understanding of what will or will not be admitted. Certainly, understanding the scope of evidence in advance can be a great assistance in preparing for trial. 

Having presided over hundreds of bench trials, my perception is that the vast majority of evidence disputes are raised at the trial and efficiently resolved at that time. Though there may be various issues appropriately raised for ruling prior to trial, that has not been the norm in my experience in workers' compensation. Whether to raise the issues in advance or not is up to the party who wishes for that advance ruling, and depends upon how much that party values or needs the piece of mind that comes with it. 

Armed with an advance ruling, an attorney and party may be better able to make sound decisions about their own litigation plans — for example, if there is discussion that one driver was under the influence or impaired in the hypothetical car accident described above. Perhaps that discussion comes from a single, peripherally involved witness who lacks any training or scientific data to support the conclusion of impairment (more prejudicial than probative).

A motion to strike that testimony before trial may clarify whether such impairment testimony will be admitted. Armed with that evidentiary conclusion, that driver and her/his attorney can make an informed decision as to whether they must prepare to present evidence to counter the allegation of impairment. And that may save the party time and money in preparation. The value is clear. 

However, in the bench trial setting, this would not be a motion in limine, but a motion to strike testimony regarding impairment, or a motion to exclude evidence of impairment. The effect — that is, foreknowledge of the ruling and the ability to better plan for trial — is the same perhaps. However, the labeling ("strike" or "exclude") of the request is both more descriptive and clear. 

As a final thought, applicable to all motions, the clarity with which a lawyer expresses how such a ruling is important and helpful, the explanation provided to support such a motion, and the citation of legal authority (statutes, rules, case law determinations) in support will all likely be helpful to the trial judge in making a sound decision regarding that particular dispute. In other words, state clearly what is desired, explain clearly why it is important, and provide legal citations in support.

These tips will help the party to get a determination. They apply as aptly to the opportunity for the other party to file a response to that motion. That response should as clearly explain the opposing view (why no ruling or a different ruling is appropriate), what outcome the opposing party seeks, and should cite legal authority. It is surprising how often the opposing party declines or neglects to file any response to a motion. 

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.