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.
