Motion In Limine

[weishaupt1776]

Motion in Limine

Comes now Defendant, Joe Shmoe, and requests this motion in limine to prohibit the prosecutor from using the terms "motor vehicle" and* "driver" while referring to the defendant in the course of this hearing/trial until such time as the prosecutor enters evidence into the record of this court that I am the person defined as a "driver" and my car is the "motor vehicle" as defined in the statute.

Order
Cert of Service

[weishaupt1776]

STYLE OF THE CASE }



{PARTY}’S MOTION IN LIMINE



Before the voir dire examination of the jury panel, and out of the presence and hearing of the jury panel, {party}, {name}, makes this motion in limine.* {Party} seeks to exclude matters that are incompetent, irrelevant, or prejudicial to the issues in this case.* If {adverse party}, {name}, injects these matters into the trial of this case through a party, an attorney, or a witness, it will cause irreparable harm to {party}’s case, which no jury instruction could cure.* If any of these matters are brought to the attention of the jury, directly or indirectly, {party} would be compelled to move for a mistrial.* In an effort to avoid prejudice and a mistrial, {party} urges this motion in limine.



Defendant denies that he is the person defined*in the State of Misery's Vehicle Code. Defendant further denies that his personal automobile is the motor vehicle*defined*in the State of Misery's Vehicle Code.



{Party} asks the court to instruct {adverse party} and all counsel not to mention, refer to, interrogate about, or attempt to convey to the jury in any manner, either directly or indirectly, any of the matters listed below without first obtaining a ruling from the court outside the presence and hearing of the jury, and to instruct {adverse party} and all counsel to warn and caution each witness to follow the same instructions.



A.* Grounds



{CHOOSE & ADAPT PARAGRAPHS 1-72 AS APPROPRIATE}



(reword the request using an appropriate one from below*that is near what you are asking about. Use your own state's court cases, rules of evidence or procedure.)



{General grounds}



1.*** Any witness {adverse party} did not name in response to requests for disclosures or interrogatories, or any evidence requested by {party} but not produced by {adverse party}.* See, e.g., Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 395 (Tex. 1989).



AGREED:******** YES******** NO



2.*** Any testimony or arguments that contradict {adverse party}’s deemed admissions.



AGREED:******** YES******** NO



3.*** Any testimony or argument suggesting {party} asserted claims of privilege during discovery.* Claims of privilege are not admissible as evidence.* See Tex. R. Evid. 513(a), (b).



AGREED:******** YES******** NO



4.*** Any attempt to elicit testimony from {party} about communications with {his/her/its} lawyers.* Such communications are privileged.* Tex. R. Evid. 503.



AGREED:******** YES******** NO



5.*** Any attempt in the presence of the jury to seek or request {party}’s attorneys to produce documents, to stipulate to any fact, or to make any agreement.



AGREED:******** YES******** NO



6.*** Any testimony by {adverse party}’s expert concerning {his/her} discussions with another expert.* See Tex. R. Evid. 801, 802; Birchfield v. Texarkana Mem. Hosp., 747 S.W.2d 361, 365 (Tex. 1987).



AGREED:******** YES******** NO



7.*** Any evidence that {party}’s expert was represented by {party}’s counsel in a past lawsuit.* Such evidence is not admissible for impeachment purposes.* See Stam v. Mack, 984 S.W.2d 747, 751 (Tex. App.—Texarkana 1999, n.p.h.); Watson v. Isern, 782 S.W.2d 546, 549 (Tex. App.—Beaumont 1989, writ denied).



AGREED:******** YES******** NO



8.*** Any mention {party} is an atheist.* Evidence of religious beliefs of a witness is not admissible to enhance or impair credibility.* See Tex. R. Evid. 610.*



AGREED:******** YES******** NO



9.*** Any mention {adverse party} goes to church every Sunday and tithes.* Evidence of religious beliefs of a witness is not admissible to enhance credibility.* See Tex. R. Evid. 610.*



AGREED:******** YES******** NO



10.* Any mention {party} has {describe conduct}.* Even though evidence of a habit may be admissible to prove that a party’s conduct on a particular occasion conformed with the habit or routine practice, evidence of past conduct that does not rise to the level of habit is inadmissible.* See Tex. R. Evid. 406, 608(b); Magro v. Ragsdale Bros., Inc., 721 S.W.2d 832, 834 (Tex. 1986).



AGREED:******** YES******** NO



11.* Any mention {party} drinks or spends excessively on liquor.* Intoxication is not an issue in this trial, and this evidence would unduly prejudice the jury against {party}.* See McCarty v. Gappelberg, 273 S.W.2d 943, 945 (Tex. App.—Fort Worth 1954, writ ref’d n.r.e.).



AGREED:******** YES******** NO



12.* Any mention {party} received a dishonorable discharge from the military.



AGREED:******** YES******** NO



13.* Any mention {party} has not filed income tax returns.* See Wilkins v. Royal Indem. Co., 592 S.W.2d 64, 66-67 (Tex. App.—Tyler 1979, no writ).



AGREED:******** YES******** NO



14.* Any mention {party} is wealthy, which is irrelevant and prejudicial.* See Wilmoth v. Limestone Prods. Co., 255 S.W.2d 532, 534 (Tex. App.—Waco 1953, writ ref’d n.r.e.).



AGREED:******** YES******** NO



15.* Any mention {adverse party} is {poor/not wealthy}.* See Wilmoth v. Limestone Prods. Co., 255 S.W.2d 532, 534 (Tex. App.—Waco 1953, writ ref’d n.r.e.).



AGREED:******** YES******** NO



16.* Any mention of the value of {party}’s assets, which can be an indicator of wealth, and is irrelevant and prejudicial. See First Nat’l Bank v. Beavers, 619 S.W.2d 288, 289-90 (Tex. App.—Texarkana 1981, writ ref’d n.r.e.).



AGREED:******** YES******** NO



17.* Any mention {party} received a traffic ticket or paid the traffic ticket.* See Isaacs v. Plains Transp. Co., 367 S.W.2d 152, 153 (Tex. 1963); Condra Funeral Home v. Rollin, 314 S.W.2d 277, 282 (Tex. 1958).



AGREED:******** YES******** NO



18.* Any mention {adverse party} did not receive a traffic ticket.* See Isaacs v. Plains Transp. Co., 367 S.W.2d 152, 153 (Tex. 1963); Condra Funeral Home v. Rollin, 314 S.W.2d 277, 282 (Tex. 1958).



AGREED:******** YES******** NO



19.* Any mention {party} was convicted of misdemeanor DWI.* Evidence of criminal convictions is admissible for impeachment only if the trial court rules that the probative value outweighs the prejudicial effect, and the crime was a felony or involved moral turpitude.* See Tex. R. Evid. 609(a); Ramirez v. Wood, 577 S.W.2d 278, 290 (Tex. App.—Corpus Christi 1978, no writ).* A conviction for DWI is a misdemeanor and does not involve moral turpitude.* Shipman v. State, 604 S.W.2d 182, 184 (Tex. Crim. App. 1980).



AGREED:******** YES******** NO



20.* Any mention of a statement made by {party} during plea negotiations that did not result in a plea of guilty, or resulted in a guilty plea that was later withdrawn.* Tex. R. Evid. 410.



AGREED:******** YES******** NO



21.* Any mention {adverse party} received a purple heart from the military.



AGREED:******** YES******** NO



22.* Any mention {party}’s witness is a resident alien and is about to be deported.* See Plyler v. Doe, 457 U.S. 202, 215, 102 S.Ct. 2382, 2394 (1982) (illegal aliens are covered by the 14th amendment and must be treated equally with citizens).



AGREED:******** YES******** NO



23.* Any mention, by reference to title or otherwise, that the witness, {name}, who will be called by {adverse party}, {is/was} a judge.* The jury should not be influenced by {name}’s {present/former} status as a judge, which would increase the probative value of {name}’s testimony and unfairly prejudice the jury in {adverse party}’s favor.* Weiss v. Commission for Lawyer Discipline, 981 S.W.2d 8, 22 (Tex. App.—San Antonio 1998, pet. denied).



AGREED:******** YES******** NO



24.* Any mention of the probable testimony of a witness who is absent, unavailable, or not called or allowed to testify in this case.



AGREED:******** YES******** NO



25.* Any mention of an untrustworthy blood test.* See, e.g., United Pac. Ins. Co. v. Jones, 710 S.W.2d 760, 762 (Tex. App.—Beaumont 1986, writ ref’d n.r.e.) (blood test improperly authenticated).



AGREED:******** YES******** NO



26.* Any testimony in violation of the Dead Man’s Statute.* See, e.g., Cain v. Whitlock, 741 S.W.2d 528, 530 (Tex. App.—Houston [14th Dist.] 1987, no writ); see Tex. R. Evid. 601(b).



AGREED:******** YES******** NO



27.* Any comment by {adverse party}’s attorney that informs the jury of the effect of its answers to the questions in the charge.* See Magic Chef, Inc. v. Sibley, 546 S.W.2d 851, 857 (Tex. App.—San Antonio 1977, writ ref’d n.r.e.).



AGREED:******** YES******** NO

[weishaupt1776]

28.************** Before the court rules on the law applicable to this case, any statement of the law other than that regarding the burden of proof and the basic legal definitions counsel believes to be applicable.



AGREED:******** YES******** NO



29.* Any mention of the letter from {adverse party}’s lawyers advising that {party}’s claim was {a certain win/a loser}.* See Beacon Nat’l Ins. Co. v. Reynolds, 799 S.W.2d 390, 397 (Tex. App.—Fort Worth 1990, writ denied).* Self-serving evidence generated by a party is inadmissible.



AGREED:******** YES******** NO



30.* Any mention of a regulatory measure, which is not admissible without a showing of its application to the situation in question and a clear violation of the regulation.* See Mottu v. Navistar Int’l Transp. Corp., 804 S.W.2d 144, 146-47 (Tex. App.—Houston [14th Dist.] 1990, writ denied).*



AGREED:******** YES******** NO



31.* Any mention the parties engaged in settlement negotiations.* See Tex. R. Evid. 408; Birchfield v. Texarkana Mem. Hosp., 747 S.W.2d 361, 365 (Tex. 1987).



AGREED:******** YES******** NO



32.* Any mention of a statement made by {party} during settlement negotiations.* See Ochs v. Martinez, 789 S.W.2d 949, 959-60 (Tex. App.—San Antonio 1990, writ denied).*



AGREED:******** YES******** NO



33.* Any mention {party} {is/was} involved in other suits.* See Birchfield v. Texarkana Mem. Hosp., 747 S.W.2d 361, 365 (Tex. 1987).



AGREED:******** YES******** NO



34.* Any mention of {party}’s failure to call a witness.



AGREED:******** YES******** NO



35.* Any mention that an award of damages will affect insurance premiums, the price of any goods or services, or the level of taxation.



AGREED:******** YES******** NO



36.* Any mention that the jurors should put themselves in the position of the {adverse party}.



AGREED:******** YES******** NO



37.* Any mention from {adverse party}’s attorney regarding {his/her} personal opinion about the credibility of any witness.



AGREED:******** YES******** NO



{Grounds for plaintiff}



38.* Any attempt to elicit testimony or introduce records from plaintiff’s {physician/psychologist} concerning plaintiff’s mental or emotional health.* Such communications are privileged because plaintiff’s mental and emotional health does not relate in a significant way to {his/her} claim.* Tex. R. Evid. 509, 510; R.K. v. Ramirez, 887 S.W.2d 836, 842 (Tex. 1994).



AGREED:******** YES******** NO



39.* Any testimony or argument suggesting plaintiff’s attorney has a contingency fee in the suit.* See Azar Nut Co. v. Caille, 720 S.W.2d 685, 688 (Tex. App.—El Paso 1986), aff’d, 734 S.W.2d 667 (Tex. 1987).



AGREED:******** YES******** NO



40.* Any photographs of plaintiff exercising strenuously after the accident, which were obtained by defendant’s investigator in violation of Texas Disciplinary Rule of Professional Conduct 4.02.* See Barham v. Turner Constr. Co., 803 S.W.2d 731, 739 (Tex. App.—Dallas 1990, writ denied).* Plaintiff believes defendant’s attorney instructed {his/her/its} investigator, in violation of the Texas Disciplinary Rules of Professional Conduct, to contact plaintiff, befriend {him/her}, and invite {him/her} to exercise strenuously.* If the court overrules this matter, plaintiff requests the opportunity to make a record on this issue and examine defendant’s attorney and {his/her} investigator.



AGREED:******** YES******** NO



41.* Any mention plaintiff received benefits under the provisions of {his/her} uninsured policy.* See Allen v. Avery, 537 S.W.2d 789, 791 (Tex. App.—Texarkana 1976, no writ).



AGREED:******** YES******** NO



42.* Any mention plaintiff received health and accident or disability insurance.* See Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 581-82 (Tex. App.—Houston [14th Dist.] 1992, no writ).



AGREED:******** YES******** NO



43.* Any mention plaintiff received retirement benefits.* See Azar Nut Co. v. Caille, 720 S.W.2d 685, 688 (Tex. App.—El Paso 1986), aff’d, 734 S.W.2d 667 (Tex. 1987).



AGREED:******** YES******** NO



44.* Any mention plaintiff received unemployment benefits.* See Century Papers, Inc. v. Perrino, 551 S.W.2d 507, 511 (Tex. App.—Texarkana 1977, writ ref’d n.r.e.).



AGREED:******** YES******** NO



45.* Any mention plaintiff received social security disability payments.* See Traders & Gen. Ins. Co. v. Reed, 376 S.W.2d 591, 593 (Tex. App.—Corpus Christi 1964, writ ref’d n.r.e.).



AGREED:******** YES******** NO



46.* Any mention plaintiff received veteran’s benefits.* See Montandon v. Colehour, 469 S.W.2d 222, 229-30 (Tex. App.—Fort Worth 1971, no writ).



AGREED:******** YES******** NO



47.* Any mention plaintiff received free medical care.* See City of Fort Worth v. Barlow, 313 S.W.2d 906, 911 (Tex. App.—Fort Worth 1958, writ ref’d n.r.e.).



AGREED:******** YES******** NO



48.* Any mention plaintiff received contributions from family, friends, or {his/her} employer.



AGREED:******** YES******** NO



49.* Any mention plaintiff received benefits from sick leave or vacation time.



AGREED:******** YES******** NO



50.* Any mention plaintiff, the surviving spouse in a death case, {had an extramarital relationship/is married under the common law/is engaged to marry a millionaire}.* See Tex. Civ. Prac. & Rem. Code §71.005; Exxon Corp. v. Brecheen, 526 S.W.2d 519, 525 (Tex. 1975).



AGREED:******** YES******** NO



51.* Any mention of the financial consequences of plaintiff’s remarriage.* See Richardson v. Holmes, 525 S.W.2d 293, 299 (Tex. App.—Beaumont 1975, writ ref’d n.r.e.).



AGREED:******** YES******** NO



52.* Any mention plaintiff’s recovery will not be subject to taxation.* See Turner v. General Motors Corp., 584 S.W.2d 844, 853 (Tex. 1979).



AGREED:******** YES******** NO



53.* Any testimony or argument suggesting plaintiff {should have pursued/did not pursue} any remedy or remedies authorized by the Texas Workers’ Compensation Act.



AGREED:******** YES******** NO



54.* Any mention plaintiff filed other workers’ compensation claims.* See St. Paul Fire & Marine Ins. Co. v. Murphree, 357 S.W.2d 744, 748 (Tex. 1962).



AGREED:******** YES******** NO

[weishaupt1776]

55.* Any testimony or evidence regarding the settlement of or the amount of money plaintiff received in settlement of the underlying workers’ compensation claim.



AGREED:******** YES******** NO



56.* Any other reference to collateral sources, including group medical insurance benefits.



AGREED:******** YES******** NO



57.* Any mention of plaintiff’s claim against {name}.* Evidence of another claim to show plaintiff is a professional litigant is improper.* See Employers Cas. Co. v. Peterson, 609 S.W.2d 579, 585 (Tex. App.—Dallas 1980, no writ).



AGREED:******** YES******** NO



58.* Any mention an insurance company owns a portion of plaintiff’s claim.



AGREED:******** YES******** NO



59.* Any mention plaintiff was not wearing a seat belt at the time of the accident.* See Carnation Co. v. Wong, 516 S.W.2d 116, 117 (Tex. 1974)



AGREED:******** YES******** NO



60.* Any testimony or evidence regarding injuries plaintiff suffered before the injuries that are the subject of this suit.



AGREED:******** YES******** NO



{Grounds for defendant}



61.* Any reference to minutes of a hospital section meeting, which are privileged under Texas Health & Safety Code §§161.023, 161.024, 161.031-161.033.* See Birchfield v. Texarkana Mem. Hosp., 747 S.W.2d 361, 365-66 (Tex. 1987).



AGREED:******** YES******** NO



62.* Any comment that attempts to impose liability upon or arouse prejudice against defendant simply because it is a corporation.



AGREED:******** YES******** NO



63.* Any comment or reference to defendant corporation as “foreign” or “alien” or any similar comment that may draw upon the prejudices of the jury toward defendant corporation’s home country.* Such evidence is irrelevant, and its probative value is substantially outweighed by the danger of unfair prejudice.



AGREED:******** YES******** NO



64.* Any comment to the jury that the court can reduce the amount of the jury’s award.



AGREED:******** YES******** NO



65.* Any comment regarding who pays the damages, or whether defendant will pay the damages.



AGREED:******** YES******** NO



66.* Any mention defendant is covered by liability insurance.* See Tex. R. Evid. 411; Rojas v. Vuocolo, 177 S.W.2d 962, 964 (Tex. 1944); Atchison, T.S.F.R. v. Acosta, 435 S.W.2d 539, 549 (Tex. App.—Houston [1st Dist.] 1968, writ ref’d n.r.e.).* Referring to a witness as an “adjuster” introduces insurance into the case.* See Acosta, 435 S.W.2d at 549.



AGREED:******** YES******** NO



67.* Any mention plaintiff’s collateral compensation was reduced.* For example, the loss of Social Security benefits by a widow and child is not admissible as evidence that they are entitled to a larger damage award.* See McLemore v. Broussard, 670 S.W.2d 301, 303 (Tex. App.—Houston [1st Dist.] 1983, no writ).*



AGREED:******** YES******** NO



68.* Any mention of post-accident changes.* Evidence of post-accident changes is not admissible to prove liability in a non-product liability case.* See Tex. R. Evid. 407(a); Russell v. Dunn Equip., Inc., 712 S.W.2d 542, 546 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.).*



AGREED:******** YES******** NO



69.* Any mention a landowner in a condemnation suit was unwilling to sell.*



AGREED:******** YES******** NO



70.* Any comment or reference of other criminal activity which took place at defendant’s other {identify premises, e.g., apartment houses, stores}.* Merely because crimes have occurred at {identify premises, e.g., an apartment house, a store} in a high-crime area does not make it more likely that crimes will occur at another {identify premises, e.g., apartment house, store} in another area.* For a risk to be foreseeable, there must be evidence of criminal activity within the specific area at issue, either on the landowner’s property or in close proximity.* Timberwalk Apts. v. Cain, 972 S.W.2d 749, 757 (Tex. 1998).* The factors of proximity, recency, frequency, similarity, and publicity must be considered in determining whether criminal conduct was foreseeable.* Id.* Those factors are not present in this case.



AGREED:******** YES******** NO



71.* Any comment or reference of unreported criminal activity at defendant’s other {identify premises, e.g., apartment houses, stores}.* Timberwalk Apts. v. Cain, 972 S.W.2d 749, 757 (Tex. 1998).* Unreported criminal activity on the premises is not evidence of foreseeability.* Previous similar incidents cannot make future crime foreseeable if nobody knows or should have known that those incidents occurred.* Id.



AGREED:******** YES******** NO



72.* Any mention defendant paid or made offers to pay any medical expenses of plaintiff.* See Tex. R. Evid. 408, 409.



AGREED:******** YES******** NO



B.* Prayer



73.* For these reasons, {party} asks the court to instruct {adverse party} and {his/her/its} counsel and witnesses not to mention, refer to, interrogate about, or attempt to convey to the jury in any manner, either directly or indirectly, any of the matters listed above without first obtaining a ruling from the court outside the presence and hearing of the jury.



Tell me you get it now. Don't forget signature lines,* certificates of service and conference and an order.[/b]