National Institute for Trial Advocacy Publishes Professor Gildin’s “Motions In Limine: The Indispensable Plan B”

NATIONAL INSTITUTE FOR TRIAL ADVOCACY PUBLISHES PROFESSOR GILDIN’S “MOTIONS IN LIMINE: THE INDISPENSABLE PLAN B”

March 2025 — The National Institute for Trial Advocacy included Professor Gary S. Gildin’s contribution, “Motions In Limine: The Indispensable Plan B,” in its just released Collective Wisdom: The Evidence Rules as Litigator Tools.

Professor Gildin’s submission explains that to take full advantage of motions to exclude evidence in advance of trial. it is necessary to anticipate the many reasons the court may prefer to defer ruling until the moment of the trial when the evidence is offered. In addition to asking the court to issue a pretrial ruling excluding the evidence, every motion in limine should seek the following relief:

Alternatively, if the court postpones definitively ruling on the motion until trial, we respectfully request that the court issue the following order:

1. [The attorney for the opposing party] is prohibited from mentioning [the evidence in issue] during jury selection or in their opening statement;
2. At the time that [the attorney for the opposing party] intends to ask a witness a question that will elicit [the evidence in issue], before asking the question [the attorney for the opposing party] must approach the bench and, outside the hearing of the jury, advise the court that they intend to elicit the evidence at that moment.
3. The argument over the admissibility of [the evidence in issue] will be conducted outside the hearing of the jury.
4. [The attorney for the opposing party] must instruct each of their witnesses not to make any mention of [the evidence in issue] until the court has ruled the evidence admissible at trial.

NITA’s Collective Wisdom series compiles articles by experienced trial lawyers and advocacy professors. NITA has previously included three of Professor Gildin’s works in its Collective Wisdom releases: KISS (Keep It Simple, Stupid) 2.0: TOTS (Tell Only the Story), published in Collective Wisdom: The Opening Statement Song (2024); “The Neuroscience of the Teaching Expert,” published in Collective Wisdom: Expert Witnesses. (2023), and “It’s the Story, Stupid,” published in Collective Wisdom: One Bit of Advice (2021).

Professor Gary S. Gildin teaches Civil Liberties Litigation as well as Protection of Individual Rights Under State Constitutions. He is the author of Religious Freedom Under Article I Sections 3 and 4 of the Pennsylvania Constitution, published in THE PENNSYLVANIA CONSTITUTION: A TREATISE ON INDIVIDUAL RIGHTS AND LIBERTIES, Ken Gormley and Joy G. McNally eds. (Second Edition 2020) and contributed to the Brief of Amici Curiae Law Professors David S. Cohen, Gary S. Gildin, Seth F. Kreimer, Jules Lobel, Robert Reinstein in William Penn School District et al. v. Pennsylvania Department of Education et al., No. 587 M.D. 2014 (Commonwealth Court of Pennsylvania), in which Judge Renee Cohn Jubelirer ruled that the system of funding public education violated the fundamental right to meaningful education under Pennsylvania Constitution.