Courtroom Violations of Motions in Limine: A Call for Judicial Activism

I am driven by zealous advocacy on behalf of my clients. They engage my services when they are at their most vulnerable and they entrust their future to me. This is the cornerstone of my work and I take it very seriously.

The highest ideal of the law is that it provides us with a defined structure and set of rules to elicit truth for litigants. For lawyers these parameters are designed to allow us to best do our job for our clients. A trial is the most intense truth-seeking process. We use motions in limine in advance of trial to manage the information that is brought before the jury to keep the process free of inadmissible, irrelevant and prejudicial evidence. Information and practices sought to be barred from the jury’s view can be the difference between a verdict for the plaintiff and a not-guilty because essentially jurors are human. Although they are admonished to follow the judge’s instructions and the law, jurors can become attached to certain facts that serve as a rationalization for following their preconceived notions and bias rather than the law. So when opposing counsel brazenly defies an in limine order during the course of trial, it is a significant betrayal of the process.

Yet I find that opposing counsel’s actions are met with a judicial “ho hum” and a pie-in-the-sky instruction asking the jury to disregard the offending information. Now we’re faced with the classic situation depicted in the movie When Harry Met Sally that you can’t take it back because it’s “already out there” and we’re ultimately “doomed.”

The “proactivist” in me seeks to formulate strategies for avoiding this passive-aggressive and, actually, contemptible, behavior by attorneys. When I find myself on trial with an injured victim beside me, and opposing counsel brings in evidence barred by an in limine order and I am forced to rise, interrupt counsel, vigorously object, and then wait for the judge to rule, I know in the eyes of the jury that I am the villain in this scenario regardless of the judge’s ruling. It creates a very unfair, no-win predicament. On the other hand, it is a win-win scenario for opposing counsel. Even if my objection is sustained, the jury has heard the barred evidence in a tantalizing manner that only serves to highlight it, they likely consider me rude, abrasive or obstructionist, and sympathize with opposing counsel. This trial strategy strains the bounds of ethics in knowingly violating a court order.

To avoid this tainting of the trial process I suggest more vigorous judicial activism to achieve deterrence. Perhaps the in limine orders could dictate specific mandatory penalties for violations. In the courtroom the judge must enforce such penalties. Judges might consider methods by which they can easily review and reference the in limine orders on the bench at trial. Minimally, when a judge is met with an in limine violation he or she should hold all discussions of the objection outside the presence of the jury and then admonish offending counsel in front of the jury making clear the gravity of such conduct. Multiple violations might be met with a mistrial or the barring of a witness. In this instance, the power of the gavel can instill more integrity in the process and pound out dubious gamesmanship.

We offer a no-cost, no-pressure, no-obligation consultation to discuss your rights

From our offices in downtown Chicago our personal injury litigation attorneys represent clients in communities throughout Cook County and Illinois. Learn more about ways we can help you receive the compensation you need for your physical, mental, emotional, and financial recovery. Contact us today to schedule a free initial consultation.

$27

million

Product Liability - Family man paralyzed in a boating injury when he fell from the upper deck of a yacht. The offer by the insurance company for the defendant was only $3 million before trial and $25 million after three weeks of jury trial, offered after closing arguments.

Trial Attorneys Mark McNabola, Ruth Degnan

$20

million

Construction Site Negligence - A man was demonstrating construction equipment known as a “man lift," and was elevated in the air. The lift collapsed, and the plaintiff suffered permanent injuries to his ankle and lower back. McNabola represented one of two seriously injured plaintiffs. Prior to trial, the offer was only $3 million.

Lead Trial Attorney Mark McNabola

$14

million

Medical Malpractice - Following induced labor, the unborn child suffered fetal distress, C-section delivery was delayed. The baby’s mother died from an amniotic fluid embolism during delivery and the baby suffered severe developmental delays.

Lead Trial Attorney Mark McNabola

$12

million

Medical Malpractice - A 52 year old man suffered an anoxic brain injury following routine bowel surgery when doctors and nurses at a suburban hospital failed to properly monitor and treat post-operative metabolic changes. This case concluded after evidentiary rulings at the time of jury selection. The offer before trial was only $3 million.

Trial Attorneys Mark McNabola, Ruth Degnan

$10

million

Trucking Negligence - A grandmother who was rendered wheelchair dependent in a motor vehicle incident involving car versus truck. The offer for settlement prior to trial was only $2 million.

Trial Attorneys Mark McNabola, Ruth Degnan

$9.2

million

Medical Malpractice - A young woman suffered amputations as a result of complications following surgery at a suburban hospital in a collar county of Chicago. The doctors and nurses failed to develop and implement an appropriate plan to manage blood thinning medications pre and post-operatively leading to severe clotting and tissue death. The case settled after evidentiary rulings at the time of jury selection. Offer before trial was only $2 million.

Trial Attorneys Mark McNabola, Ruth Degnan

$8.8

million

Trucking Negligence - A young girl was killed when she was struck by a vehicle that had previously collided with a bus that was traveling too fast for conditions. After a ten-day jury trial, a Cook County jury returned a verdict in favor of the family. According to the Jury Verdict Reporter, this is a record high verdict for the wrongful death of a minor in a motor vehicle accident. There was no offer for settlement by any defendant.

Lead Trial Attorney Mark McNabola

$7

million

Trucking Negligence - Cook County jury awarded $7 Million to a construction worker who lost his leg working on a City of Chicago site. As a result of the defendant’s failure to safely route traffic in the area the man was pinned against his truck by a driver. The defendant did not offer any money to settle the case.

Lead Trial Attorney Mark McNabola

$6

million

Motorcycle Negligence - A teenager and her father were injured in a motorcycle accident. The 15 y/o suffered a severe fracture of her right ankle and has required multiple surgeries

Lead Trial Attorney Mark McNabola