Trial Tip 4

Roy’s Trial Law “TIPS”–Tip No. 4:

Taking the Wind Out of Their Sails

Updated 2010

by Roy D. Wasson

Board Certified in Appellate Practice

Fellow of the Academy of Florida Trial Lawyers

 

You probably have had clients who have had a drinking problem or used drugs in their past, or who have other skeletons in their closet which are irrelevant to the present personal injury or wrongful death case. Of course you are going to file a Motion in Limine on those issues, citing some of the many cases keeping such evidence out, like Mount v. Camelot Care Center, 816 So. 2d 669 (Fla. 3d DCA 2002)(my win) and Smith v. Hooligan’s Pub & Oyster Bar, 753 So. 2d 596 (Fla. 3d DCA 2000).

But what if you lose that Motion in Limine? Don’t you just hate appellate co-counsel who are always on your case to OBJECT! OBJECT! OBJECT!(?)   Don’t they know that the jury is going to hold it against your client if you are viewed as trying to hide evidence by objecting? Don’t those academic types understand that the game plan is to win a big verdict in the first place, not to lose and then get a second shot on appeal? Now maybe those appellate co-counsel will back off a little. The Supreme Court has given trial lawyers some breathing room from the age-old mantra that IF THE MOTION IN LIMINE IS DENIED, YOU STILL HAVE TO RENEW THE OBJECTION WHEN THE EVIDENCE IS OFFERED. Now that ain’t necessarily so, but here is a word or two of caution.

It has been several years since the Florida Supreme Court decided Sheffield v. Superior Ins. Co., 800 So. 2d 197 (Fla. 2001). That decision has likely had more impact on courtroom trial procedure than 99 out of 100 Supreme Court cases ever do. In Sheffield, the Supreme Court had the good sense to follow two Third DCA cases in which trial judges had erroneously denied motions in limine about the plaintiffs’ prior alcoholism and character flaws, and which had held that the plaintiffs’ attorneys’ efforts to minimize the harm by broaching the topic with the jury in voir dire, opening statement and their case-in-chief was not a waiver of the error for appellate purposes. Boiled to its essence, the case holds:

We hold that once a trial court makes an unequivocal ruling admitting evidence over a movant’s motion in limine, the movant’s subsequent introduction of that evidence does not constitute a waiver of the error for appellate review.

 

Id. at 202-03.  The Sheffield court’s ruling was thereafter incorporated in §90.104, Fla. Evid. Code which states: “If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”

 

What could be clearer than that holding from the Supreme Court, right? Now you can take the wind out of the defense attorney’s sails and the jury will love you for bringing-up any bad stuff in your client’s past, right? The issue will be preserved for appeal, right? Probably, but think about this first.

In Sheffield, there was not just a denial of the plaintiff’s motion in limine. After that ruling, “[t]he parties then stipulated that Sheffield would have a standing objection to the introduction of collateral source evidence and would not have to contemporaneously or spontaneously object during trial in order to preserve the objection for appeal [and] Superior also agreed on the record that Sheffield had not waived her objection by raising the collateral source issue during voir dire and opening statement.” Id. at 198 (emphasis added).

A more recent case following the Sheffield holding is Saleeby v. Rocky Elson Constr., Inc., 3 So. 3d 1078 (Fla. 2009).  That was a case in which the trial court initially ruled that evidence of the Plaintiff’s settlement with a former defendant was inadmissible.  “Subsequently, however, the trial court reversed itself, ruling such evidence admissible.  The trial court agreed, however, that Saleeby’s objection was not waived if he chose to minimize the impact of the evidence by admitting it himself.”  Id. at 1085.  The Supreme Court held that the plaintiff was entitled to take the wind out of the defendant’s sails by presenting this evidence himself, holding that “Saleeby did not waive his objection, and his presentation of the contested evidence did not constitute invited error.”  Id.

This is a suggestion that you think about asking for a standing objection, after a ruling denying your motion in limine, and asking the trial judge and defense attorney to stipulate on the record that you may open the door to the subject of that evidence. If the your opponent refuses, you could make a statement on the record that you are going to bring up the subject yourself in reliance on the Sheffield court’s holding.  There are cases recognizing that a party does not waive error in a trial court’s unequivocal ruling admitting evidence by taking the wind out of the opponent’s sails and presenting the evidence himself, even without an express ruling by the trial judge or stipulation from opposing counsel that no waiver occurred.  See Rodgers v. State, 948 So. 2d 655 (Fla. 2006).

One word of caution is that you should not go beyond the specific evidence that was the subject of the denied motion in limine and voluntarily introduce other unfavorable evidence based upon the trial court’s ruling.  You only will be permitted to introduce the specific evidence that you sought to exclude by way of the motion in limine, without waiving your objections, even if you believe that the tenor of the trial judge’s ruling is going to result in other related evidence coming in also.

In Byrd v. BT Foods, Inc., 34 Fla. L. Weekly D2477; 2009 Fla. App. LEXIS 18431 (Fla. 4th DCA Dec. 2, 2009), the plaintiff in an employment discrimination case moved in limine to preclude admission of certain documents from the EEOC file.  “After argument on the motion, the trial judge denied the motion and announced at the beginning of trial that he was going to allow introduction of the ‘EEOC finding in this case.’” Id. at *9.  Thereafter, the plaintiff stipulated to the admission of the entire EEOC file.  On appeal, the plaintiff argued error in the admission of the EEOC finding, and also appealed the introduction of the other portions of the EEOC file.  The Fourth District agreed that there was error in admitting the EEOC findings and rejected the Defendant’s argument that the error was waived by the plaintiff’s stipulation to the admission of the entire EEOC file.

However, “because the trial court’s ruling was limited to allowing admission of the EEOC’s findings or determination from its investigation, Byrd’s failure to make contemporaneous objections when other portions of the EEOC file were introduced at trial waived any error for appellate review as to those documents.”  Id. at n.4.

Before taking the wind out of the defendant’s sails by introducing the evidence that should have been excluded per your motion in limine, make sure that the specific evidence you are introducing is part of the “unequivocal ruling.” Bottom line: now you can really concentrate on getting the verdict first and worrying about the appeal later.   It may not totally keep your appellate lawyer off your back when you are not renewing an objection that he or she wants you to make, but all you can do is:

 

Keep tryin’!

Roy W.