moehrle - get out and stay out .1/26/15 1 presented by: laura moehrle quinlivan & hughes and matt


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  • 1/26/15


    P R E S E N T E D B Y :

    L A U R A M O E H R L E Q U I N L I V A N & H U G H E S

    A N D

    M A T T M O E H R L E

    R A J K O W S K I H A N S M E I E R

    GET OUT AND STAY OUT Motions in Limine and Preserving

    Issues on Appeal

    Overview Motions in Limine

    Common Motions Trending Topics

    Appellate Practice Basics of Appealing Trial

    Motions Preserving Issues for

    Appeal during Trial

    Motions in Limine Practice Tips

    Request Motion in Limine Deadlines from Court

    Particularly important in

    large cases Gives Court advance

    notice of complicated issues; removes doubt as to admissibility

    May encourage settlement

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    Police Reports

    Citation Decisions Evidence of Ticket

    Inadmissible Minn. Stat. 169.94

    Use of Police Report Report Inadmissible Cannot use report as

    substitute for own recollection

    White v. Lund No. C8-94-2640, 1995 WL 379063 (Minn. Ct. App. 1995).

    Police Reports

    Condition of Defendant

    Use of Alcohol or Drugs

    Must be relevant to liability or damages

    Admissible only if shown

    to be a proximate cause of injury

    See Mueller v. Sigmond,

    486 N.W.2d 841 (Minn Ct. App. 1992)

    Condition of Defendant

    Bad Acts: Prior:

    Must be substantially similar to incident at issue

    Cannot be too remote in time

    Rule 404 (a) and (b) Ray v. Miller Meester

    Advertisting Other Evidence of

    Negligence No evidence of negligence

    unless cause

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    Condition of Defendant

    Criminal History: Rule 609

    Generally Inadmissible Allowed for impeachment 10 year time limit No juvenile adjudications

    Medical Care and Treatment

    Plaintiff Exclude statements made

    by health care provider to Plaintiff

    Exclude Future Medical based on Affordable Care Act

    Defendant Physical condition

    Can assert a privilege to any inquiries


    Qualifications of Expert Scope of expertise

    Validity of Science Rule 702 Doe v. Archdiocese of St.

    Paul Tests and

    Demonstrations Conditions must be

    substantially similar

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    Testimony of non-retained expert Minn. R. Civ. P. 26.01(b) Retained v. non-retained Limited to matters

    contained in medical records

    Testimony on causation opinions need to be disclosed in a report

    Brooks v. Union Pacific Railroad Co., 620 F.3d 896 (8th Cir. 2010).

    Regulations and Statutes

    Failure to Obtain License or Permits

    Must be connection

    between failure to obtain and accident


    Drivers License Hagel v. Schoenbauer

    Subsequent Remedial Measures

    Rule 407 Generally Inadmissible Repairs Precautions Modifications New Policies/Procedures

    Public policy Encourage safety

    consciousness Raises issue of awareness/

    notice of hazard

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    Motions in Limine: Win Some, Lose Some

    Appeal from motion in limine loss: Cant appeal order on motion

    in limine directly Bring motion for new trial

    after verdict Must specifically argue that

    inclusion/exclusion of evidence at issue in motion in limine is grounds for new trial

    Sauter v. Wasemiller, 389 N.W.2d 200, 201-02 (Minn.1986) (new trial motion required); Kitchar v. Kitchar, 553 N.W.2d 97, 102 (Minn.App.1996) (to be appealed, alleged error must be argued in new trial motion).

    Deadlines: Appeal of Post-Trial Motions

    Rule 59 Motion for New Trial or Rule 50.02 Post-Trial Motion for JMOL Must serve notice of filing

    of order on opposing parties

    Appeal must be within 60 days of service of such notice

    Minn. R. Civ. App. P. 104.01 subd. 1

    Appeal Deadlines (cont.)

    Compare: Appeal of Directed Verdict (now JMOL) Appeal deadline is 60 days from entry of judgment (not filing

    of order). Minn. R. Civ. App. P. 104.01 subd. 1. Dont need to serve notice of filing of order for directed verdict

    to start 60-day appeal clock Practice Tip: Keep tabs on court staff to enter judgment

    properly/timely: Signed/entered by Court Administrator; not Judge. Minn. R. Civ.

    P. 58.01. Dismissal should say with prejudice, though not entirely

    necessary if its clear dismissal was on merits. Unbank Co., LLP v. Merwin Drug Co., 677 N.W.2d 105, 109 (Minn. Ct. App. 2004).

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    Practice Tips: Avoiding Disaster

    Preserving Record for Appeal Make sure exhibits get

    entered into evidence; File all pocket briefs

    dont just hand deliver to judge;

    Print out and attach as exhibits copies of websites cited to as authorities in memoranda of law. Eischen v. Crystal Valley Co-op., 835 N.W.2d 629, 636 (Minn. Ct. App. 2013).

    Practice Tips (cont.)

    Preserving Record for Appeal Get all oral arguments on record:

    Motions in Limine Objections to proposed jury instructions or verdict form questions Bench conferences re: objections Directed Verdict/JMOL arguments If nothing else, go on record during jury breaks or after case goes to


    Standards of Review: Trial Motion Orders

    Admissibility of Evidence: Evidentiary rulings are

    within sound discretion of trial court; expert or other

    Abuse of Discretion standard on appeal

    Directed Verdict/JMOL De novo review

    May influence strategy of whether to bring motion in limine or deal with issue during trial

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