How to Use Motions in Limine to Narrow Issues at Trial in Georgia

When a car accident case in Atlanta gets close to the trial date, your lawyers will be preparing a number of motions to limit the amount of surprises. A Motion is a document that lawyers file asking the Judge to take some particular action. In Georgia, Motions in Limine can be filed as late as the morning of trial and they are aimed at preventing the other side from using improper arguments or introducing irrelevant evidence during the trial.

For a car accident case, these motions often focus on other injuries, family problems or irrelevant criminal issues. Be sure to read the blog post on what criminal records are admissible at trial for a better explanation of what kind of crimes will impeach you in Georgia.

Without further ado, here is a lengthy Motion in Limine from a case we tried in December.


PLAINTIFF’S FIRST MOTION IN LIMINE
Plaintiff respectfully requests that the Court order that counsel for the Defendants and any
of the defense witnesses to be called at the trial of this matter, be instructed to refrain from making any mention, interrogation, argument, or statement, whether directly or indirectly, in any manner whatsoever, concerning any of the matters set forth herein without first approaching the bench and obtaining a ruling of the Court outside the presence and hearing of all prospective or actual jurors whether in voir dire, opening statements, direct or cross examination, objection, motions, or closing argument in regard to any alleged theory of admissibility of such matters. Plaintiff shows the Court that the matters set forth below are inadmissible for any purpose and timely objection at trial would have would have no bearing on any of the issues in this case. Hale v. State, 214 Ga. App. 899, 449 S.E.2d 520 (1994). “The purpose in filing a motion in limine to suppress evidence or to instruct opposing counsel not to offer it is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury with respect to matters which have no proper bearing on the issues in the case or on the rights of the parties to the suit. It is the prejudicial effect of the questions asked or statements made in connection with the offer of the evidence, not the prejudicial effect of the evidence itself, which the motion in limine is intended to reach.”
Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 285 (Ga. 1979)

ARGUMENT AND CITATION OF AUTHORITY
Plaintiff respectfully requests the Court rule to exclude the following evidentiary Matters at
the trial of this case:

IF THIS COURT TAKES ANY MATTER UNDER ADVISEMENT THEN
BEFORE MENTIONING TO THE JURY, APPROACH BENCH:
This Court may delay ruling on a matter and take it under advisement. Plaintiffs request that
before mentioning any such matter to the jury, Defense Counsel approach the
bench and request a hearing on such matter outside the presence of the jury. At
the hearing Defense Counsel should make a proffer of such matter and the Court
should hear argument from both sides so this Court can rule on the admissibility
of such matter.

1.

Repair Estimates or Pictures of the Plaintiff’s Vehicle Subsequent to the Collision.

Plaintiff moves that this Court enter an Order in Limine that prohibits the introduction for any purpose photographs of the vehicles, or repair records of such vehicles for illustration involved in this matter. The evidence of the extent or amount of property damage is irrelevant. Because the fact of the collision and the damage to the vehicles involved are not at issue in this case, photographs of the vehicles, property damage invoices, or other evidence regarding the extent or amount of property damage is not relevant. Georgia Rule of Evidence O.C.G.A. §24-2-1 defines relevant evidence as “evidence that relates to the questions being tried by the jury and bear upon them either directly or indirectly. Evidence that fails to meet that definition is irrelevant and is inadmissible. O.C.G.A. §24-2-1.
The Defendant admitted causing the collision. Additionally, neither party has made a claim for property damage in this suit. Because neither the fact of the collision nor the amount of damage to the vehicles is at issue in this case, evidence discussing such issues does not make any fact of consequence more or less probable.
Because the collision and the damage to the vehicles are not issues in this case, the only conceivable purpose for evidence of the extent or amount of property damage is to invite the jury to speculate on the issue of causation (or absence thereof). To prove or disprove causation, however, the party must present competent evidence through competent witnesses after a proper foundation has been laid for the witnesses’ testimony.
The Defendant has not designated any expert witnesses to testify as to causation or lack thereof. Instead, Defendant may refer to the photographs or repair invoices for the vehicles and argue that the jury should use their “common sense” and find that Plaintiffs injuries could not have been caused in this collision. State Farm has used numerous biomechanics experts in other trials to testify to juries regarding the velocities involved in moderate impacts and had they wanted to argue that in this case, they should have brought such an expert. Georgia courts require testimony, not argument, to prove or disprove causation and damages.
Use of evidence of property damage in this manner requires a proper foundation be laid through an expert witness. Interpreting the force of an impact from vehicle photographs and then assessing the likelihood of injury from such impact are tasks that can only be attempted by experts. Such matters are not within jurors’ realm of common sense.
Discovery has closed, and there has not been a designation of an expert on issues of biomechanics. Evidence is not admissible when it is not accompanied by supporting expert testimony to establish an adequate foundation.
_____ Granted.

_____ Denied.

_____ Agreed.

2.

Whether Plaintiff has been involved in other Litigation, Claims or Settlements.

Testimony regarding other litigation, claims or settlements is not relevant and would not tend to prove or disprove any disputed issue of material fact. See O.C.G.A. § 24 2 1. Rather, the only reason that Defendant would offer such evidence is to show that the Plaintiff has a general reputation for being litigious. The law in Georgia is that the “general character of the parties and especially their conduct in other transactions are irrelevant.” See O.C.G.A. § 24 2-2 and Grannemann v. Salley, 95 Ga. App. 778, 99 S.E.2d 338 (1957) (in actions arising out of automobile collisions, the issue is the negligence or non-negligence of the operator at the time and place of the event, and each such transaction is to be ascertained by its own circumstances and not by the reputation or character of the parties).
_____ Granted.

_____ Denied.

_____ Agreed.

3
Argument that Other Injuries or Medical Conditions Explain Plaintiff’s Symptoms Without Proper Medical Testimony
Plaintiff moves that the Court exclude any claim, argument or other statement that any prior or subsequent claims and injuries of Plaintiff are related to the injuries now at issue, unless such contention is first established by testimony of someone having sufficient and appropriate medical training and supported by medical records. Such argument cannot be made without first providing medical proof as to such causation. It is clear that neither a witness nor lawyer without any medical training can give such an unsupported opinion. See, Eberhart v. Morris Brown College, 181 Ga. App. 516, at 518 & 519 (1987); Thomason v. Willingham, 118 Ga. App. 821, 165 S.E. 2d 865 (1968).
Plaintiff moves that any such argument or statement of counsel be excluded unless and until such causation is established at trial through testimony of a qualified medical expert.
Questions regarding the causal relationship between an injury and a physical condition for which medical expenses have been incurred are “medical questions” that require expert testimony. Eberhart v. Morris Brown College, 181 Ga. App. 516 (1987); citing Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200 (1986). “The diagnosis and potential continuance of a disease are medical questions to be established by physicians as expert witnesses and not by lay persons.” Hunnicutt v. Hunnicutt, 237 Ga. 497 (1976). Accordingly, Plaintiff requests that this Motion be granted and that Defendants be prohibited from arguing any “alternative causation” unless Defendant is prepared to introduce competent medical testimony in that regard. Gaining v. Barron, 108 Ga. App. 530, 133 S.E.2d 389 (1963) (“The usual manner of offering testimony concerning the physical condition of a claimant is by producing expert testimony of a physician who treated him.”). Defendant has not identified any qualified medical witness to testify about this issue at any time during the two plus years of this litigation.
Such arguments or evidence would lead the jury to an inference or conclusion regarding the causation of Plaintiff’s injuries that is not supported by expert testimony. Plaintiff therefore
respectfully requests the Court exclude evidence and argument to the jury of any theory of injury
causation that has not been established to a reasonable degree of medical probability by a qualified medical witness; and, that Defendant not be allowed to use any prior medical records for impeachment of a prior inconsistent statement unless he supports it with expert testimony and only after satisfying the Court under the rule in Barone.
An example of a question addressed to the Plaintiff that runs afoul of the statute without
supporting expert testimony and is unfairly prejudicial would be as follows: “Didn’t you have a back injury prior to the subject incident?” If the answer is “Yes”, then the jury is lead to believe the plaintiff is seeking recovery for an injury existing long before the subject collision and possibly completely unrelated to the subject collision. Without the support of expert testimony, such line of questioning alone is irrelevant to any issues in this case. If the defendant wants to propound alternative theories of causation, he is free to do so, but not outside the parameters of the law.
Plaintiff submits that questions by defense counsel concerning prior injuries are exactly the type of questions that require a complete medical explanation supported by expert medical testimony in order to present the jury with an understanding of the precise medical condition, even if they are used for impeachment of a prior inconsistent statement. For example, the spinal column contains the following vertebrae: 7 Cervical; 12 Dorsal or Thoracic; Lumbar; Sacral; and 4 Coccygeal. Gray’s Anatomy, The Classic Collector’s Edition, Bounty Books, 1977. Thus when discussing these areas of the spinal column, what the layman may think is the “back,” is within the eye of the beholder.
Accordingly, Plaintiff moves to prohibit the Defense from proffering or soliciting on cross examination such unfairly prejudicial evidence being presented to the jury without a proper
foundation and without expert testimony that explains the specific medical condition or theory to be propounded or suggested or implied by the Defendant.
_____ Granted.

_____ Denied.

_____ Agreed.

4.

Evidence regarding the taxation of an award of compensatory damages.

Plaintiff anticipates that Defendant may try to suggest to the jury that Plaintiff is simply trying to get rich by telling the jury that any recovery by the Plaintiff might not be subject to federal income tax or any other form of taxation. Plaintiff objects to such evidence because it is irrelevant and does not tend to prove or disprove any disputed issue of material fact, namely whether the Defendant was negligent and whether his negligence was the proximate cause of Plaintiff’s injuries.
_____ Granted.

_____ Denied.

_____ Agreed.

5.
Deleted
6.
Must Have Certified Records of Prior Conviction, If Any.
Any reference or suggestion as to any crime by the plaintiff that defense does not have certified copies of the convictions. A witness may be impeached by the “properly authenticated copy of his conviction”, not by his own admission in a deposition or testimony that he entered a pleas of guilty. Business Resources, Inc. v. General Amusements, Inc., 186 Ga. App. 185 (1988).

_____ Granted.

_____ Denied.

_____ Agreed.

7.

The Time or Circumstances under Which Plaintiff Employed Her Attorney.

Plaintiff anticipates that Defendant may attempt to elicit evidence or argue to the jury that
Plaintiff somehow did something wrong when he hired his attorney in this matter. Plaintiff objects to the introduction of such evidence or argument to the jury for several reasons. As a preliminary matter, the date on which the plaintiff retained counsel is privileged pursuant to O.C.G.A. § 24 9 21, which protects against the disclosure of communications between attorney and client. Such facts do not tend to prove or disprove any issue of material fact and would only serve to mislead the jury and confuse the issues. Georgia Bldg. Services v. Perry, 193 Ga. App. 288, 295 (1989).
Candler v. Byfield, 160 Ga. 732, 739(2), 129 S.E. 57 (1925). Fred F. French Mgmt. Co. v. Long, 169 Ga.App. 702, 704(2), 314 S.E.2d 666 (1984).

Futhermore, testimony about when she did hire her first lawyer, Mr. Hobbs, is also completely irrelevant to the trial of the case.
For these reasons, Plaintiff respectfully requests the Court exclude such evidence and argument from the jury.
_____ Granted.

_____ Denied.

_____ Agreed.

8.
Documents, photographs, video tape recordings, etc. that have not been produced in discovery.
Plaintiff, through discovery has requested that Defendants produce for inspection and copying any document, photograph, motion picture or video tape, sound recording or the like that has not previously been produced by Defendant to Plaintiff during discovery or identified with reasonable particularity in the parties’ Consolidated Pretrial Order. In the event Defendant attempts to introduce into evidence or present to the jury any document, photograph, motion picture or video tape, sound recording or the like that has not previously been produced by Defendants to Plaintiff during discovery or identified with reasonable particularity in the parties’ Consolidated Pretrial Order, Plaintiff respectfully requests the Court exclude the same from the jury’s consideration.
_____ Granted.

_____ Denied.

_____ Agreed.

9.

The Impact this Award Might Have on Insurance Rates.

Plaintiff believes that Defendant may argue to the jury the actual or possible effect or result of this claim, lawsuit, or judgment on the rates insurance companies may charge for premiums or other charges. Plaintiff objects to the introduction of such evidence or argument to the jury because any mention of insurance in a negligence action such as the case sub judice is irrelevant and grounds for a mistrial. Central of Georgia R. Co. v. Wooten, 163 Ga. App. 622, 295 S.E.2d 369 (1982).
_____ Granted.

_____ Denied.

_____ Agreed.

10.

Legal Accident.

Plaintiff anticipates that Defendants may argue to the jury that Defendant is not liable
to Plaintiff under the doctrine of “legal accident.” Plaintiff respectfully requests the Court admonish Defendants against such an argument because the Supreme Court of Georgia abolished the doctrine of “legal accident.” Tolbert v. Duckworth, 262 Ga. 622.423 S.E.2d 229 (1992).
_____ Granted.

_____ Denied.

_____ Agreed.

11.
Other Compensation.
That the plaintiff, by reason of age, infirmity, or otherwise, is now or may be entitled in the future to receive any compensation or benefits by reason of the Social Security Law of the United States or from any governmental agency such as the veterans’ Administration, Medicare, or sources of this nature.
_____ Granted.

_____ Denied.

_____ Agreed.

12.
Financial Status of Attorney or Medical Provider.
Any reference or suggestion to the income or financial status of the plaintiff’s attorney or the treating physicians. The issue of the wealth or income of the attorneys or treating physicians should not become an issue in the case.
_____ Granted.

_____ Denied.

_____ Agreed.
13.
American Tort System or Plaintiff’s Lawyers in General.
Any reference or suggestion or the introduction of any evidence by the defense counsel directly or indirectly attacking the American Court System or plaintiffs attorneys or recent tort reform campaigns.
Neither the American tort system or plaintiffs attorneys in general are on trial in this case. The trial of this case should not be an opportunity for defense counsel to voice opinion regarding tort reform. The injuries sustained by the plaintiff are a result of the defendant’s negligence and the defense should not be permitted to ignore the issues in this case and attack the tort system in general. The debate surrounding tort reform is completely irrelevant to this case and would serve only to inflame and prejudice the jury. Such references would poison this case with anti lawsuit and anti lawyer bias, which has been highlighted in recent corporate, media campaign and emotional propaganda. The only thing to be gained in allowing defense counsel to discuss these issues would be a concealment of the truth. This subject applies to Trial only and not Voir Dire.
_____ Granted.

_____ Denied.

_____ Agreed.

14.
Plaintiff’s Use of Award.
Any reference or suggestion as to what Plaintiff will or might do with any award of damages Plaintiff might receive. See O.C.G.A. §24 2 1 and §24 2 2; Gusky v. Candler General Hospital, 192 Ga. App. 521 (3) (1989). See also, Hall v. Chicago & Northwestern Railway Co., 125 N.E.2d 77, 86 (Ill.1955); and Law note at 28 ATLA Law Reporter 101 (April 1985).
_____ Granted.

_____ Denied.

_____ Agreed.

15.
Money Will Not Undo Damage.
Any reference or suggestion to the effect that “money won’t undo the injury and damage the plaintiff may have sustained”, because such a suggestion is an improper appeal for jury sympathy toward Defendant and invites the jury to disregard it’s duty to apply the legal measure of damages which the evidence shows have been caused by Defendant’s misconduct and instead to base a verdict on improper considerations. See O.C.G.A. §24 2 1; Gielow v. Strickland, 185 Ga. App. 85, 86 (1987) (jury cannot be urged to use some other measure of damages than that prescribed by law); Central of Georgia Railway v. Swindle, 260 Ga. 685, 687 (1990) (trial should not be invaded by improper considerations); Adams v. Camp Harmony Association, 190 Ga. App. 506, 508 (1989) (effect of verdict an improper consideration).
_____ Granted.

_____ Denied.

_____ Agreed.

16.
Defendant Is “Sorry” or “Apologizes.”
Any reference or suggestion that Defendant is sorry or regrets the occurrence in question, because such a suggestion is an improper appeal for jury sympathy toward Defendant, and invites the jury to disregard it’s duty to apply the legal measure of damages by awarding such damages as the evidence shows have been caused by such defendant’s misconduct and base a verdict on improper considerations. O.C.G.A. §24 2 1; Adams v. Camp Harmony Association, 190 Ga. App. 506, 508 (1989); Gielow v. Strickland, 185 Ga. App. 85, 86 (1987) (jury cannot be urged to use some other measure of damages than that prescribed by law); Central of Georgia Railway v. Swindle, 260 Ga. 685, 687 (1990) (trial should not be invaded by improper considerations).
_____ Granted.

_____ Denied.

_____ Agreed.

17.

Any reference or suggestion that the Plaintiff was not wearing a seat belt at the time of the collision. See O.C.G.A. §40-8-76.1
_____ Granted.

_____ Denied.

_____ Agreed.
18.
Collateral Source Rule.
Plaintiff anticipates that Defendant intends to inject the issue of collateral source payments into evidence in this case. The is in direct contravention of the Collateral Source Rule. No mention shall be made that any part of the medical bills of Plaintiff were paid by any health insurance carrier, med pay carrier, private disability insurance, SSDI or other third party, or that any portion of Plaintiff’s past lost wages were paid. The common law rule in Georgia bars the defendant from presenting any evidence as to payments of medical, hospital, disability income, or other expenses of a tortuous injury paid for by a plaintiff, governmental entity, or third party and taking credit towards the defendant’s liability in damages for such payments, because a tortfeasor is not allowed to benefit by its wrongful conduct or mitigate its liability by collateral sources provided by others. The common law rule made no exceptions for the introduction of evidence as to a collateral source, which rule remains applicable today. (Citations omitted.)  Candler Hosp. v. Dent, 228 Ga.App. 421, 491 S.E.2d 868 (1997).   See also Ins. Co. of North America v. Fowler, 148 Ga.App. 509, 511(2), 251 S.E.2d 594 (1978), overruled on other grounds, Seaboard Coast Line R. v. Mobil Chemical Co., 172 Ga.App. 543, 544(1), 323 S.E.2d 849 (1984). Kelley v Purcell, 301 Ga.App. 88, (2009).

_____ Granted.

_____ Denied.

_____ Agreed.

19.
Any Attempt to Impeach the Plaintiff on Her Failure to Recall Filing a Medpay Claim for a Single Medical Visit in a Subsequent Wreck.
It is well settled in Georgia that a party may not be impeached on a collateral issue that is not material to the case at hand. Plaintiff anticipates that Defendant will attempt to impeach Plaintiff based on her failure to recall submitting a hospital bill to her medical payments insurance company for a subsequent collision. The identity of the payor of a single medical bill in a subsequent and unrelated collision is wholly immaterial to this case and is therefore not proper impeachment evidence, especially under the probative versus prejudicial balancing test in that the jury may then infer that there is medical payments insurance available to pay bills for the underlying collision case. Warren v. Ballard 266 Ga. 408 (1996)
_____ Granted.

_____ Denied.

_____ Agreed.

20.
Advertisement by Plaintiff’s Attorney.
Any reference or suggestion to the advertisement or the fact that plaintiff’s attorney advertises. This includes slogans, jingles, or reference to the yellow pages, television or any media. The issue of how attorneys obtain business should not become an issue in the case. The fact that plaintiff’s counsel advertises to obtain clients is not relevant to the case.
_____ Granted.

_____ Denied.

_____ Agreed.
21.
No Argument About Motions in Limine.
No mention shall be made to the fact that this motion or any other motion in limine has been presented to or ruled upon by the Court. In this connection, Plaintiff moves that defense counsel be instructed not to suggest to the jury by argument or otherwise that Plaintiff has sought to exclude from proof any matter bearing on the issues in this cause or the rights of the parties to this suit.
_____ Granted.

_____ Denied.

_____ Agreed.

22.
Contingency Fee Agreement.
Plaintiff anticipates that Defendant or Defendant’s counsel may try to introduce before the jury, by argument, questioning, testimony or otherwise, facts or evidence regarding the contingency fee agreement between Plaintiff and their counsel and/or the fact that Plaintiff’s counsels’ fee is a percentage of Plaintiff’s recovery. Such evidence or argument would clearly be irrelevant to the case and any reference thereto should be barred. Stoner v. Eden, 199 Ga. App. 135, 136-37; 404 S.E.2d 283 (1991)(defense counsel’s comment on contingent-fee contract between plaintiffs and their counsel was improper and irrelevant to the issue of damages). Plaintiff requests an order from the Court barring any reference to the above at trial.
_____ Granted.

_____ Denied.

_____ Agreed.

23.
Speaking Objections During Trial.
Plaintiff requests an Order prohibiting counsel from introducing before the jury improper argument, questioning, or testimony in the form of speaking objections made during trial. It is axiomatic that speaking objections are not permitted during the course of any examination of witnesses, for the simple reason that such objections suggest answers to the witness being examined. This practice necessarily hinders the search for the truth, which is the ultimate goal of every trial. Accordingly, no party should be allowed to make speaking objections during the trial of this case.
_____ Granted.

_____ Denied.

_____ Agreed.

24.
Introduction of or Use of the Motor Vehicle Accident Report Prepared by the Police.
The motor vehicle accident report in this case is hearsay evidence. It contains hearsay opinions, hearsay estimations, hearsay conclusions, and speculations of contributing factors that cause the collision.
Even if the police officer who prepared the motor vehicle accident testifies, the report itself contains hearsay statements from other parties and contains opinions that otherwise would not be admissible. The police officer who prepared the report was not present at the time of the collision and did not see it firsthand. The police officer has no personal firsthand knowledge of what happened at the time of the collision.
In prior civil motor vehicle collision jury trials some opposing lawyers have suggested in front of the jury that the jury be allowed to see the motor vehicle accident report. This is improper for any lawyer or any party to make such a suggestion in front of the jury.
_____ Granted.

_____ Denied.

_____ Agreed.

25.
Evidence and Testimony That the Defendant Driver Was Not Injured in this Rear End
Collision.
Defendant Driver’s lack of injuries are irrelevant and immaterial in this case. Defendants may introduce evidence that the Defendant Driver was not hurt at all. Plaintiff anticipates that Defense counsel will argue that if Defendant was not hurt as the driver of the bullet vehicle, then the Plaintiff could not be hurt as occupants of the target vehicle.
Each collision is unique. Injuries to human beings depend on many factors which include, but are not limited to, the pre-existing conditions of the occupants, the positioning of the occupants in the vehicles, and many other dynamics. Such an argument requires biomechanical evidence instead of mere lay testimony about what is medically probably.
_____ Granted.

_____ Denied.

_____ Agreed.

26.
Filing of the Lawsuit Close to the Statute of Limitations.
Plaintiffs have the right to file a lawsuit anytime within the two year statute of limitations. No inference should be taken from a filing just prior to the two year statute of limitations. In the case of Turner vs. W.E. Pruett Company, Inc., 202 Ga. App. 287 (1991), the Court of Appeals held that the Court erred in allowing evidence that Plaintiff waited until just prior to the running of the Statute of Limitations before the filing of a wrongful death lawsuit with the implication sought to be raised by such evidence that the claim was not well founded. Georgia law is clear that this is inadmissible.
_____ Granted.

_____ Denied.

_____ Agreed.

27.
Misuse of Medical Records During Cross Examination:
Defense counsel should be prohibited in limine from using medical records in cross examination in a manner other than approved Defense counsel should be prohibited in limine from using medical records in cross examination in a manner other than approved in Barone vs. Law, Ga. App. 102, 527 S.E.2d 898 [3] (2000), which states:
[l]n order for statements in medical records to be utilized as a prior inconsistent statement against a witness when the medical provider who recorded the witness’ statements in the medical record is not present at trial, the trial court must be able to reasonably infer from the face of the records that the witness was the actual source of the statements at issue if the witness denies having made the statement. For example, such an inference may be made when the witness’ medical records (a) are written in the “first person,” as in a patient’s medical history: (b) specifically quote the witness as having made the statement: or (c) clearly indicate on the face of the records that the only source of the medical history was the witness, as when the information reveals something only the witness would know and which could not come from a third party…. However, to the extent that the medical records are unclear as to the source of the statements contained therein, such statements may be utilized only as a witness’ prior inconsistent statements if additional foundation testimony is presented on remand to establish that the witness was, in fact, the declarent of such statements. (Emphasis Supplied)

Plaintiff anticipates that defense counsel may attempt to read aloud portions of medical records during cross-examination of Plaintiffs. Defense counsel should not be permitted to ask plaintiff a question injecting portions of the medical records into the question unless the safeguards of Barone are met first.
If the Defense counsel’s intention is to refresh recollection, then Plaintiffs can be shown the record and asked if it helps them remember. The correct procedure for refreshing recollection has four steps:
(1) establish that the witness is having trouble recalling some relevant fact; (2) ask the court for permission to refresh the witness’s recollection; (3) hand the witness the writing or item and ask him to review it and see if it refreshes his recollection; (4) when the witness has finished reviewing the item, take the item or writing away from the witness and ask if his memory is now refreshed as to the matter in question. If the witness answers affirmatively, he may then testify from refreshed memory. Milich, Georgia Rules of Evidenced 13.5, 229-230. It is clearly not permissible for defense counsel to include a recitation of the content of the document within the question itself.
If the intention is to show a prior inconsistent statement, then a properly redacted certified copy of the medical record should be shown to the Plaintiff after Plaintiff is asked a question and responds inconsistently from the record. That medical record is only admissible if the medical provider who recorded the witness’ statements is present at trial, or if the trial court can reasonably infer from the face of the records that the witness was the actual source of the statements if the witness denies having made the statements. See Barone above.
Defense counsel should be instructed not to read portions of medical records into his questions and to properly follow the requirements for refreshing recollection and using prior inconsistent statement as set forth above.
_____ Granted.

_____ Denied.

_____ Agreed.

28.
Any Argument, Testimony, or Comment Comparing Plaintiffs’ Lawsuit to Playing the Lottery.
Arguments comparing a plaintiff’s personal injury lawsuit to playing the lottery have become more prevalent in recent years. Any such argument is improper and should be excluded.
There is no Georgia authority what has addressed this issue. However, the Supreme Court of South Dakota has considered this precise issue, and its opinion in Schoon v. Loobv, 2003 S.D. 123,670 N.W. 2d 885 (2003) is enlightening and instructive. In Schoon, the plaintiff in a medical malpractice case appealed from a defense verdict and the denial of a motion for new trial. The basis for the appeal was improper comments made by defense counsel during final argument. Those comments included referring to the lawsuit as the plaintiffs’ quest for “lotto or power ball or whatever they call it, lets really roll the dice big.” Schoon, 670 S.W. 2d at 890.
_____ Granted.

_____ Denied.

_____ Agreed.

29.
Films and Videos Shown to Jury Only after Ruled on by Court.

That should the Defendants wish to introduce any photographs or motion picture film into evidence, that the same be tendered to the Court and opposing counsel, outside of the presence of the jury, and shown or exhibited to determine its relevance and suitability for introduction into evidence prior to and before informing the jury as to its existence or its tender into evidence by the Defendants.
_____ Granted.

_____ Denied.

_____ Agreed.

30.
Payment of Judgment.
Any indication of any kind that Defendant driver personally will have to pay any judgment that may be entered in this case, especially since Defendant is insured against liability. See O.C.G.A. §24-2-1; Adams v. Camp Harmony Association, 190 Ga. App. 506, 508 (1989); Denton v. Conway Express, Inc., 261 Ga. 41 (1991); Northwestern University v. Crisp, 211 Ga. 636, 641 (1955);
_____ Granted.

_____ Denied.

_____ Agreed.

31.
Superseded Pleadings.
Any reference or suggestion as to the contents of any pleadings which have been superseded by the current pleadings or the pretrial order on file in this case.
_____ Granted.

_____ Denied.

_____ Agreed.

32.
Comments or Arguing Evidentiary Inferences Based on Plaintiff Having Gone Through 2 Prior Lawyers and Having Multiple Lawyers at Trial.
The citizens of Georgia have the right to access whatever lawyer they see fit and the exercise of that right should have no negative inferential value and has no place at trial. These are improper areas for questioning and argument.
_____ Granted.

_____ Denied.

_____ Agreed.

33.
Inform Witnesses.
Plaintiff moves the Court for an Order directing counsel to inform any and all defense witnesses of the Court order regarding these matters, and to instruct any and all such witnesses to refrain from mentioning any such matters in the presence and hearing of all prospective jurors or jurors ultimately selected in this case until defense counsel has obtained a ruling in compliance with this order that such matters would be admissible as evidence in this case.
_____ Granted.

_____ Denied.

_____ Agreed.

34.
Vouching for Defense Witnesses.
Any reference or suggestion as to whether or not Plaintiff or any of Plaintiff’s witnesses believe that any of the defense witnesses are honorable or otherwise worthy of belief. O.C.G.A. §24-2-1.
_____ Granted.

_____ Denied.

_____ Agreed.

35.
Personal Belief of Counsel.
Any reference or suggestion by defense counsel as to his or her personal belief concerning the credibility of any witnesses, or as to the merits of Plaintiff’s claims, injuries, or damages. Manning v. State, 123 Ga. App. 844, 845-6 (6) (1971); Georgia State Bar Rules, DR 7-106 (C) (4); EC 7-24.
_____ Granted.

_____ Denied.

_____ Agreed.

36.

Deleted
_____ Granted.

_____ Denied.

_____ Agreed.

37.

Any Statement, Evidence or Inference that the Plaintiff asked Defendant not to Call the
Police.

When the police were called and who called them is totally irrelevant to the issues in this case. The defendant has admitted negligence and there is no explicable reason to offer this evidence. In fact the prejudicial value would outweigh any probative effect of the evidence in that the jury could infer that the Plaintiff did not want the police involved because she somehow caused the wreck or she was somehow driving under the influence or did not have a driver’s license at the time of the wreck. With negligence not being an issue for the jury, any testimony regarding this is irrelevant and will lead to confusion of the issues. .

_____ Granted.

_____ Denied.

_____ Agreed.

38.

The Introduction of Any Evidence Regarding Marital Problems or Domestic Violence involving Plaintiff’s prior Marriage
Defense counsel spent time in deposition asking Plaintiff about her prior marital discord. Any testimony or documentation of marital troubles is highly prejudicial and has no probative value and should be excluded.

39.
Photographs or Estimates from Other Collisions
Plaintiff anticipates that the Defense will want to introduce photographs from other collisions that the Plaintiff may have been involved in and ask the jury to infer that if there were more visible damage in those crashes but no injury that the Plaintiff cannot have been injured in the subject collision.

CONCLUSION
For the within and foregoing reasons, Plaintiff respectfully requests the Court grant her
Motion in Limine.

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2 responses to “How to Use Motions in Limine to Narrow Issues at Trial in Georgia”

  1. jrod says:

    This is great, thanks for posting it.
    How many of them were successful?
    Did you provide this the day of trial or sometime earlier?

  2. Moderator says:

    Most of these are granted and tend to force the defense to own up to sneak attacks before the trial starts. In Georgia you can file the morning of trial.