Preservation of Error in Motions in Limine

May 7, 2019 by on News

This article is one in a continuing series that will focus on preservation of error for appeal. Each month, Boyd & Jenerette’s appellate attorneys will analyze a specific topic and advise how to properly preserve any issues or arguments for appeal.

If you have any questions about a topic, would like to discuss any article, or would like to refer a case, please feel free to reach out to our appellate attorneys. We would also be happy to provide continuing education courses on any of the topics to adjusters or attorneys.


Motions in limine can be very powerful tools in litigation when used correctly. These pretrial motions allow parties to know what evidence will be presented to the jury. It can streamline a trial and assist with trial preparation. Additionally, it allows counsel to begin educating the court about their case and the nuances therein.

Counsel should file a written motion addressing specific evidence, argument, or testimony. An oral motion should not be made. The motion must clearly show exactly what the party is seeking to include or exclude. This is not always obvious from the record. For instance, a motion seeks to exclude a demonstrative aid, which the parties reference at the hearing simply by calling it the demonstrative aid. However, it is unclear exactly what the demonstrative aid looks like or contains. The appellate court will be unable to determine the substance of that aid and it will be prevented from reviewing any error stemming therefrom. As a result, it is recommended that counsel make this as clear as possible. If you are discussing testimony, attach the deposition transcript and reference the specific page and line. If you are addressing a document, such as a map, chart, or demonstrative aid, attach a copy to the motion.   This will ensure that it is clear for the record exactly what is at issue.

Further, attaching it to the motion is preferred over simply filing a copy. The notice of filing may not be located in the record on appeal near the motion in limine. This will make it easier on your appellate attorney, and the appellate court, to quickly reference what is at issue.

Counsel should avoid “form” or “boilerplate” motions. Many circuits have local rules which prohibit such motions. Indeed, many of the requests in these motions are governed by basic trial procedure and the Rules Regulating the Florida Bar. Some courts have been critical of these boilerplate motions. See, e.g., Boyles v. A & G Concrete Pools, Inc., 149 So. 3d 39, 43 (Fla. 4th DCA 2014) (“The excessive use of them, however, can clog the docket and become a trap.”).

In any event, parties should attempt to obtain a definite ruling from the court. If a definite ruling is obtained, a party is not required to renew an objection throughout the trial to preserve a claim for appeal. § 90.104(1), Fla. Stat. Nevertheless, if evidence is excluded, it is still wise to make a proffer of the evidence in order to ensure the full substance of the testimony or evidence is clear for appellate review.

If a party violates the definite ruling during trial, the opposing party must contemporaneously object. If the objection is sustained, the party must move for mistrial to preserve the issue for appeal. Sanchez v. State, 81 So. 3d 604, 610 (Fla. 3d DCA 2012); Ocwen Fin. Corp. v. Kidder, 950 So. 2d 480 (Fla. 4th DCA 2007). Failing to move for mistrial will be seen as a waiver.

If the trial court tentatively rules or takes the issue under advisement, the moving party is required to contemporaneous objection and proffer the evidence if necessary. Brantley v. Snapper Power Equip., Inc., 665 So. 2d 241 (Fla. 3d DCA 1995); USAA Cas. Ins. Co. v. Allen, 17 So. 3d 1270 (Fla. 4th DCA 2009).

If you have any questions about this article, preservation of error, or would like to refer a matter, please contact our appellate attorneys.

Kansas R. Gooden
Shareholder / Practice Group Leader
Direct: 904.493.3755

About the Author:

Kansas R. Gooden is a Board Certified Appellate Specialist, AV rated, and serves as the firm’s appellate practice group leader. She has extensive experience handling all types of civil appellate proceedings, including extraordinary writs and plenary appeals, in state and federal courts. She also provides trial and litigation support to attorneys throughout the state. Kansas is highly involved in the state and local bar associations and has served in many leadership roles. She currently is the Chair of the FDLA’s Amicus Committee and serves on the Board of Directors for the organization. She also serves on the Florida Bar’s Appellate Board Certification Committee, the Florida Bar’s Appellate Practice Section’s Executive Council, and as the Section’s Continuing Legal Education Chair. Kansas is a frequent lecturer and travels the state presenting seminars and presentations on various topics to both attorneys and adjusters.


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