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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 recent 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. It has been fourteen months since the Supreme Court gave trial lawyers in civil cases 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.

In October of last year the Florida Supreme Court decided Sheffield v. Superior Ins. Co., 800 So. 2d 197 (Fla. 2001) (attached). That decision will likely have 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 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."

What could be clearer than that holding from the Supreme Court from just last year, right? Now you can take the wind out of the DA'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."

This is a suggestion that you think about asking for a standing objection, after a ruling denying your motion in limine, and asking the DA to stipulate on the record that you may open the door to the subject of that evidence. If the DA 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.

Then again, you may decide that if the DA is likely to refuse that request for a standing objection and stipulation, you are better off not even mentioning that possibility in light of the language first quoted above from Sheffield, that the "unequivocal ruling" is all you need to allow you to bring up the subject yourself. Either way, use your judgment under the circumstances and you should be okay.

Bottom line: now you can really concentrate on getting the verdict first and worrying about the appeal later. Go get 'em!

Roy #2.

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