Chapter 5: Motions in Limine

Nan L. Haynes and Katrin C. Rowan

Learning Outcomes

  1. Understand:
    1. why and when to file a motion in limine;
    2. the relevant procedural rules when making or opposing a motion in limine; and
    3. the documents required when making or opposing a motion in limine.
  2. Be able to:
    1. apply the relevant procedural rules when making or opposing a motion in limine; and
    2. draft the documents required when making or opposing a motion in limine.

Introduction

If dispositive motions have not been filed or granted and the case proceeds to trial, the parties may file pre-trial motions as authorized by the court’s local rules, scheduling order, or standing orders.

One common pre-trial motion is a motion in limine, in which the parties argue before trial about the admissibility of certain evidence or arguments. The purpose of a motion in limine (meaning “at the threshold”) is “to aid the trial process by enabling the court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.” Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (citation modified).

Why File a Motion in Limine

Some evidence, including certain expert, testimonial, and documentary evidence, is not admissible depending on the facts of the case. For example, evidence may be inadmissible hearsay, protected by the attorney-client privilege, or not relevant. Or, evidence that is relevant may nonetheless be so highly prejudicial compared to its probative value to a case that it should be excluded. See O’Rear v. Fruehauf Corp., 554 F.2d 1304, 1306 n.1 (5th Cir. 1977) (describing motions in limine “for the purpose of prohibiting opposing counsel from mentioning the existence of, alluding to, or offering evidence on matters so highly prejudicial to the moving party that a timely motion to strike or an instruction by the court to the jury to disregard the offending matter cannot overcome its prejudicial influence on the jurors’ minds”) (citation omitted). An attorney may also argue that the opposing side should not be permitted to pursue a particular theory or argument at trial.

 

Exercise 5-1

 

When counsel believes an opponent will offer or mention evidence that should be excluded at trial, they can move in limine for a pre-trial ruling on the issue. The motion must  specifically identify what evidence or argument should be excluded and provide concrete reasons for its exclusion (for example, why the evidence is inadmissible under one or more of the relevant rules of evidence, which would be the Federal Rules of Evidence in federal court).

Sometimes, attorneys file motions in limine seeking a pre-trial ruling that particular evidence or argument is admissible, to avoid a dispute during trial and prepare for trial accordingly. Carefully consider your trial strategy before filing such a motion.

Resolving evidentiary issues before trial allows the parties and court to more carefully argue and consider the specific issue, as opposed to addressing it during trial itself. If the motion is successful, the jury will never hear the inadmissible or prejudicial evidence. The parties can then prepare for trial in accordance with the court’s pre-trial evidentiary ruling.

However, be careful not to overwhelm the court with pre-trial requests for rulings on motions in limine, also keeping in mind the potential benefit of surprise during trial with respect to particular evidence or strategy. Before filing a motion in limine, consider the importance of the particular evidence to your case or to the opponent’s and the benefits versus risks of bringing this issue to the court’s (and opposing counsel’s) attention before trial.

When to File a Motion in Limine

No Federal Rule of Civil Procedure prescribes when to file a motion in limine. (See the appendix for links to each state’s rules.) Instead, carefully follow the local rules, standing orders, and scheduling order.

 

Exercise 5-2

Procedural Rules

Motions in limine are focused largely on the relevant rule of evidence that supplies the basis for the request. For a general overview of the Federal Rules of Evidence, see the CALI lessons on these topics.

The practice of filing motions in limine “developed pursuant to the district court’s inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984). Therefore, as always, it is important to follow local rules and judicial preferences in terms of the timing, content, and form of these pre-trial motions. As with discovery-related motions, some courts require that counsel make a good faith effort to agree on an evidentiary issue before filing a motion in limine asking for the court’s pre-trial ruling on a particular matter.

In assessing a motion in limine, courts “make a preliminary determination on the admissibility of the evidence under Rule 104 of the Federal Rules of Evidence.” Highland Capital Mgmt., L.P. v. Schneider, 379 F. Supp. 2d 461, 467 (S.D.N.Y. 2005). “The moving party bears the burden of establishing that evidence is inadmissible for any purpose and so properly excluded on a motion in limine.” Starmel v. Tompkin, 634 F. Supp. 3d 41, 44 (N.D.N.Y. 2022). The court will grant the motion “only when that evidence is clearly inadmissible or admissible on all potential grounds.” United States v. Thrush, 768 F. Supp. 3d 879, 884 (E.D. Mich. 2024) (internal quotation marks and citation omitted). A district court may reserve judgment on a motion in limine until trial if more factual development is first necessary. See, e.g., Nat’l Union Fire Ins. Co. of Pittsburgh v. L.E. Myers Co. Grp., 937 F. Supp. 276, 287 (S.D.N.Y. 1996) (deciding to “reserve judgment on the motion until trial when admission of particular pieces of evidence is in an appropriate factual context”). Additionally, a district court may change its pre-trial ruling “when the case unfolds, particularly if the actual testimony differs from” what was presented in the motion. Luce, 469 U.S. at 41.

 

Exercise 5-3

Supporting Documents

Again, consult the applicable local rules to determine which documents must be included along with a motion in limine. Generally, include a supporting brief/memorandum of law that outlines the reasons supporting the request. See Rule 7(b), which requires that motions be in writing and “state with particularity the grounds for seeking the order,” as well as the relief sought. You may also need to include a declaration or affidavit with the relevant evidence (the subject of the motion in limine) attached. The opposing party will file a brief in opposition to the motion. Depending on local rules, the moving party may file a reply. Always check local rules to confirm page/word limits and other formatting requirements, courtesy copies, and other details. In addition to the example documents below, you can ask your supervisor or colleague for a sample filing in the same jurisdiction, to give you an idea what this brief should look like conforming to local standards. For a review of how to organize and write a persuasive memorandum of law, see Nan Haynes, Legal Writing Handbook for Clinical Students (CALI eLangdell Press 2023).

Checklist

✓        Identify the relevant rules of evidence (the Federal Rules of Evidence in federal court).

✓        You can make a well-founded argument that particular evidence or argument should be excluded (or admitted) under these rules.

✓       You have made a strategic decision to seek the court’s ruling before, rather than during, trial.

✓       Check the local rules, judicial standing orders, and Rule 16 scheduling order to identify requirements or preferences for bringing the dispute to the court’s attention, including any filing deadlines. For example, does the court require that the parties meet and confer or seek a court conference before any motion in limine is filed?

✓       Identify the required supporting documents, such as the motion, brief, and affidavits/declarations/affirmations attaching pertinent evidence.

 

Sample Documents

The following samples pertain to an employment discrimination lawsuit filed in federal district court. In this case, the admissions director of a university had been fired, purportedly for her poor job performance. However, the former employee believed her termination was based on her gender and sexual orientation, so she filed an employment discrimination suit against her former employer.

In the first motion, the defendant university seeks to exclude evidence of a prior lawsuit against the university, filed by a different former employee alleging discrimination on the basis of her gender and sexual orientation. The plaintiff opposes this motion, arguing that the jury should hear evidence related to this prior lawsuit against the same defendant. The plaintiff has also filed a cross-motion, in which she seeks to exclude evidence of her prior lawsuits against different defendants. The university opposes this motion, arguing that the jury should hear evidence tending to establish the plaintiff’s motive to file discrimination lawsuits. In compliance with the applicable local rules, the plaintiff has combined her response to the defendant’s motion with the material in support of her cross-motion.

 

Sample Document 1

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

PETULA HARVEY,
                           Plaintiff 25-cv-2962
                   v. NOTICE OF MOTION IN LIMINE
UNIVERSITY OF NEW AMSTERDAM,
                           Defendant

DEFENDANT’S MOTION IN LIMINE TO
EXCLUDE EVIDENCE OF PRIOR LAWSUIT

 

Pursuant to Federal Rule of Evidence 403,[1] defendant University of New Amsterdam respectfully moves in limine to exclude evidence of a prior lawsuit against the university filed by a different plaintiff. The parties discussed but were not able to resolve this issue during a court conference with the assigned magistrate judge on [date].[2] In support of this motion, the defendant relies on the attached memorandum of law, filed pursuant to Local Rule of Civil Procedure 7.1(b).[3]

 

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

Sample Document 2

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

PETULA HARVEY,
                           Plaintiff 25-cv-2962
                   v.
UNIVERSITY OF NEW AMSTERDAM,
                           Defendant

 

MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANT’S MOTION IN LIMINE

Defendant University of New Amsterdam (“the university”) respectfully requests that the Court enter an order excluding all reference or mention by plaintiff Petula Harvey, witnesses called on her behalf, and/or exhibits offered into evidence pertaining to an unrelated prior lawsuit against the university. Because this material would unfairly prejudice the university, it should be excluded from trial pursuant to Federal Rule of Evidence 403.

THE COURT SHOULD EXERCISE ITS DISCRETION TO EXCLUDE EVIDENCE OF THE PRIOR LAWSUIT BECAUSE ITS ADMISSION WOULD UNFAIRLY PREJUDICE THE DEFENDANT AND MISLEAD THE JURY.

As the Court is aware,[4] the university maintains in this case that it properly terminated Ms. Harvey, a former admissions director, for poor performance. The discovery materials are replete with evidence supporting the university’s position, including witness testimony, performance evaluations, and other documentary evidence. However, Ms. Harvey alleges that her employment was terminated instead due to discriminatory reasons, the subject of the upcoming trial.

During the discovery process, in response to the plaintiff’s requests, the university produced discovery material related to a 2011 lawsuit that had been filed by a former university basketball coach against the university, alleging wrongful termination on the basis of her gender and sexual orientation. Dillon v. Univ. of New Amsterdam, N.D.N.Y. No. 11-2041. The complaint filed in that lawsuit is attached to this motion as Exhibit A.[5] The plaintiff in that case alleged that she had been subjected to a series of discriminatory remarks by her supervisor, the university’s athletic director, and that she was ultimately terminated for reporting this conduct. The Dillon lawsuit generated significant negative publicity for the university, including a feature-length article in the New Amsterdam Press. A copy of that article is attached to this motion as Exhibit B.

Any mention or evidence pertaining to this lawsuit,[6] which was ultimately settled on confidential terms, should be excluded at trial given the risk of unfair prejudice to the university and confusion for the jury. Federal Rule of Evidence 403[7] provides that the “court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. District courts within the Second Circuit “generally exclude evidence of related lawsuits, due to concerns of confusing the jury and unfairly prejudicing defendants.” Thompson v. Spota, No. 14-CV-02473, 2022 WL 17253464, at *9 (E.D.N.Y. Nov. 28, 2022) (collecting cases). While the Second Circuit has permitted an exception “if part of a pervasive or continuing pattern of conduct,” Perry v. Ethan Allen, Inc., 115 F.3d 143, 151 (2d Cir. 1997), there is no indication that the former basketball coach, terminated in 2011, is in any way related to this former admissions director plaintiff, terminated in 2022.[8]

Indeed, because these matters are so disconnected in terms of substance (different university departments) and time (over a decade in between terminations), there is a substantial risk of confusing the jury by taking its attention away from the lawsuit at hand. See Stair v. Lehigh Valley Carpenters Loc. Union No. 600 of United Bhd. of Carpenters & Joiners of Am., 813 F. Supp. 1116, 1120 (E.D. Pa. 1993) (granting defendant’s motion in limine and excluding evidence of past alleged discrimination, though relevant, due to the “remoteness in time” between incidents).

Moreover, the Dillon case was settled out of court, so there has never been a judicial determination as to liability in that case. The university has already been subjected to negative press regarding those allegations. Including evidence related to that lawsuit would greatly prejudice the university as it defends the present matter, compounding the past prejudice suffered as a result of the newspaper reporting of the Dillon lawsuit.

This Court has “broad discretion over the admission of evidence.” Perry, 115 F.3d at 150. The university respectfully requests that this Court exercise this discretion and exclude all reference or evidence related to the prior lawsuit under Rule 403.

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

Sample Document 3

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

PETULA HARVEY,
                           Plaintiff 25-cv-2962
                   v. NOTICE OF CROSS-MOTION IN LIMINE
UNIVERSITY OF NEW AMSTERDAM,
                           Defendant

 

PLAINTIFF’S CROSS-MOTION IN LIMINE[9] TO EXCLUDE EVIDENCE OF PRIOR LAWSUITS

Pursuant to Federal Rules of Evidence 403 and 404(b), plaintiff Petula Harvey respectfully cross-moves in limine to exclude evidence of prior lawsuits filed by the plaintiff in unrelated actions against unrelated defendants. The parties met with the assigned magistrate judge on [date] but could not resolve this issue.[10] In support of this motion, the plaintiff relies on the attached memorandum of law, filed pursuant to Local Rule of Civil Procedure 7.1(b).[11]

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

Sample Document 4

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

PETULA HARVEY,
                           Plaintiff 25-cv-2962
                   v.
UNIVERSITY OF NEW AMSTERDAM,
                           Defendant

 

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT’S MOTION IN LIMINE AND IN SUPPORT OF
PLAINTIFF’S CROSS-MOTION IN LIMINE

 

Plaintiff Petula Harvey respectfully requests that this Court deny the defendant’s motion in limine seeking to exclude relevant evidence from trial and grant her motion in limine seeking to exclude prohibited Rule 404(b) evidence from trial.

  1. This Court should allow evidence related to a similar employment discrimination lawsuit filed against the same employer, the defendant university, because it is probative and not unduly prejudicial or confusing.

Harvey’s lawsuit alleges employment discrimination on the basis of gender and sexual orientation. The past lawsuit that the university seeks to exclude, Dillon v. Univ. of New Amsterdam, alleged employment discrimination on the basis of gender and sexual orientation.[12] As courts within the Second Circuit have repeatedly[13] made clear, such evidence is highly relevant in an employment discrimination case. See Perry v. Ethan Allen, Inc., 115 F.3d 143, 151 (2d Cir. 1997) (concluding that the district court erred by excluding evidence of past discrimination, though such error was ultimately harmless); Puglisi v. Town of Hempstead Sanitary Dist. No. 2, No. 11-445, 2014 WL 12843521, at *3 (E.D.N.Y. Jan. 27, 2014) (“A plaintiff in a discrimination action may offer evidence from other related discrimination lawsuits, such as a plaintiff’s or witness’s testimony in the other lawsuit, to show the existence of a hostile work environment or pattern of discriminatory conduct by the defendant.”).

Although some time has passed in between the two claims, courts within the Second Circuit have not developed any bright-line rule requiring a particular temporal connection. The fact that the discrimination occurred in two different departments is irrelevant, since the employer—the university—is the same. And while the university would surely prefer the jury not to hear evidence related to additional discrimination, the university does not explain why any harm would be considered unfair prejudice under Rule 403.[14] The fact that the university has already been subject to previous poor publicity from the prior lawsuit does not have any bearing on this analysis. Therefore, this relevant evidence should be admitted at trial.

 

  1. This Court should exclude evidence of the plaintiff’s prior lawsuits against unrelated defendants because it is impermissible evidence under Rule 404(b) and unfairly prejudicial under Rule 403.

The defendant indicated it intends to introduce evidence of five lawsuits the plaintiff previously filed. None is related to the present action. Three were filed over twenty years ago against the University of Arlington, alleging it failed to protect the plaintiff from sexual harassment while she was a Ph. D. candidate. Harvey v. Univ. of Arlington, N.D. Cal. No. 04-4848, N.D. Cal. No. 04-4891, and N.D. Cal. No. 04-4901. While the actions have different civil numbers, they arise from a single claim. The initial complaints were dismissed for insufficient service of process, due to ineffective counsel. The plaintiff then hired new counsel, and that claim ended with a jury verdict in favor of the defendant. The other two lawsuits, both filed in 2007, related to discrimination in the workplace. Harvey v. Safety Corp., S.D.N.Y. No. 07-828 and Harvey v. Univ. at Mariner, E.D.N.Y. No. 07-1002. The action against Safety Corp. ended with a grant of summary judgment to the defendant, and the action against the University at Mariner ended in a jury verdict in favor of the defendant. All of the relevant dockets are attached hereto as Exhibit A.

This Court should exclude evidence that the plaintiff previously litigated discrimination claims because the defendant’s sole and impermissible purpose in introducing this evidence is to attack the plaintiff as litigious. “It is well settled that it is improper for a court to admit evidence of prior lawsuits for the purpose of demonstrating that a plaintiff is a ‘chronic litigant.’” Hickey v. Myers, No. 09-01307, 2013 WL 2418252, at *4 (N.D.N.Y. June 3, 2013) (quoting Outley v. City of New York, 837 F.2d 587, 591-93 (2d Cir. 1998). According to the Second Circuit, since there is a “substantial danger of jury bias against the chronic litigant,” trial courts have a “duty to prevent exploitation of this prejudice.” Outley, 837 F.2d at 592 (citation omitted). Thus, as the Ninth Circuit has cautioned, “[t]he attempted use of past litigation to prevent a litigant from pursuing a valid claim in federal court warrants . . . most careful scrutiny.” D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1040 (9th Cir. 2008).[15]

In assessing whether prior lawsuit evidence is admissible, courts must consider both Rules 404(b) and 403:

Rule 404(b) requires a two-part analysis; first, consideration of whether the evidence fits within the exceptions listed in the rule and, second, balancing the probative value of the evidence against the likelihood of undue prejudice, equivalent to the analysis under Rule 403.

Outley, 837 F.2d at 592. Indeed, “[l]itigiousness is the sort of character trait with which Rule 404(b) is concerned.” Id.

In Outley, the Second Circuit held that it was reversible error for the district court to admit evidence of the plaintiff’s past lawsuits, since it was impermissible character evidence under Rule 404(b). Id. at 592-93, 595. The court rejected the defendant’s arguments that the evidence had been offered to impeach or prove bias. Id. at 593-95. As for unfair prejudice under Rule 403, the court noted that the “charge of litigiousness is a serious one, likely to result in undue prejudice against the party charged, unless the previous claims made by the party are shown to have been fraudulent.” Id. at 592. See also Raysor v. Port Auth., 768 F.2d 34, 40 (2d Cir. 1985) (concluding that “[a plaintiff’s] litigiousness may have some slight probative value, but that value is outweighed by the substantial danger of jury bias against the chronic litigant.”) Because there was no evidence of fraud in Outley, and because the harm to the plaintiff, “in a case where his credibility was of particular importance, was substantial,” the court reversed and remanded the case. Id. at 593-95.

For the same reasons highlighted in Outley, the evidence as to the plaintiff’s prior lawsuits should be excluded in this case. First, as the Second Circuit held in Outley, the mere fact that a plaintiff filed a lawsuit cannot be used to impeach a plaintiff’s credibility or prove their bias. Here, nothing in the record about the prior litigation suggests that the plaintiff is not credible or that she is biased against universities. One of her prior claims was against a corporate employer, not a university employer. And there is no indication that her prior lawsuits are relevant to the other Rule 404(b) permissible uses of “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or lack of accident.”

Second, as in Outley, there is no evidence that her prior lawsuits were fraudulent. That two of them ended with a jury verdict in favor of the defendant, and one in a grant of summary judgment to the defendant, does not suggest otherwise. In fact, it is consistent with the odds of winning a lawsuit against an employer. See, e.g., Kevin Clermont et al., Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, 3 Harv. L. & Pol’y Rev. 103, 127 (2009) (finding that employees won discrimination lawsuits against their employers only 15% of the time between 1979 and 2006).[16] Accordingly, this Court should rule that evidence as to the plaintiff’s prior employment discrimination litigation history is inadmissible at trial.

For these reasons, the Court should deny the defendant’s motion in limine and grant the plaintiff’s motion in limine.

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

Sample Document 5

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

PETULA HARVEY,
                           Plaintiff 25-cv-2962
                   v.
UNIVERSITY OF NEW AMSTERDAM,
                           Defendant

 

DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFF’S CROSS-MOTION IN LIMINE

This Court should deny the plaintiff’s cross-motion in limine because the evidence of her five past lawsuits against prior employers is relevant to her motive, which is admissible under Rule 404(b)(2). Moreover, its probative value is not outweighed by a danger of unfair prejudice under Rule 403.

Evidence of a party’s past litigation history is admissible if offered for a permissible purpose under Rule 404(b), as opposed to merely trying to show litigiousness. Outley v. City of New York, 837 F.2d 587, 593 (2d Cir. 1988). Then, the district court is afforded “broad discretion” in conducting a Rule 403 analysis. Id. at 592.

Other courts have allowed parties to present evidence of prior lawsuits when offered for a proper purpose under Rule 404(b). For example, in Van Deelen v. Johnson, the district court found that the plaintiff’s prior lawsuits were “similar enough to the present case in their allegations, claims and/or substance, that they could in fact reveal that plaintiff had a motive, plan or scheme to bring similar kinds of claims against those who crossed him. Because of their similarity to the present case, plaintiff’s prior civil lawsuits show more than a generic pattern of litigiousness meant to show bad character.” No. 05-4039, 2008 WL 4683022, at *3 (D. Kan. Oct. 22, 2008). Similarly, in Hickey v. Myers, the district court allowed evidence of the plaintiff’s prior lawsuit against his employer to show that the plaintiff pursued the lawsuit “in an effort to intimidate those who disagreed with him” and that the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice. No. 09-01307, 2013 WL 2418252, at *4–5 (N.D.N.Y. June 3, 2013). In both cases, the courts considered the possibility of a limiting instruction as to the jury’s consideration of this evidence. Van Deelen, 2008 WL 4683022, at *4; Hickey, 2013 WL 2418252, at *5.

Here, this Court should deny the plaintiff’s motion in limine and allow evidence of her prior lawsuits under Rules 404(b) and 403. Taken together, the plaintiff’s prior lawsuits raise questions as to her motive. Including the present matter, the plaintiff has filed no fewer than six lawsuits alleging discrimination against four separate defendants. This evidence of motive is highly probative, which outweighs any potential prejudice. Additionally, the Court could issue a limiting instruction as necessary.

Therefore, the plaintiff’s motion in limine should be denied.

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

 

  1. In the motion, the writer expressly mentions the relevant evidentiary rules that support the motion in limine. ↵
  2. The writer includes this information because it is required by the local rules for this jurisdiction. ↵
  3. In addition to a supporting memorandum of law that outlines the legal arguments behind the request, the moving party may also need to file an affidavit or affirmation setting forth the factual basis for the request. As always, carefully check local rules. ↵
  4. Because the motion is filed at a later stage in the litigation, just before trial, the court is already familiar with the facts of the case. Accordingly, only a brief summary (from the defendant university’s perspective) is offered here. In general, motions in limine should be concise and specific requests. ↵
  5. Always check local rules to see if exhibits should be attached by affidavit, affirmation, or otherwise. ↵
  6. The writer makes clear which specific evidence they seek to exclude. ↵
  7. The writer grounds the legal argument within the applicable rules of evidence, since those rules provide the basis for this request. You can read about grounding rules in Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 1 (CALI eLangdell Press 2023). ↵
  8. The writer uses parallel structure and selective emphasis to highlight the distinction. ↵
  9. In this jurisdiction, the local rules provide that a party may file a cross-motion at the same time it files its opposition to the original motion. Per N.D.N.Y. Local Rule 7.1(c), the brief in opposition to the original motion is combined with the brief in support of the cross-motion. ↵
  10. The writer includes this information because it is required by the local rules for this jurisdiction. ↵
  11. In addition to a supporting memorandum of law that outlines the legal arguments behind the request, the moving party may also need to file an affidavit or affirmation setting forth the factual basis for the request. As always, carefully check local rules. ↵
  12. The writer uses parallel structure here to emphasize the similarity between the two lawsuits. ↵
  13. The writer emphasizes the clarity and consistency of the applicable rule. ↵
  14. The writer grounds this argument in the relevant evidentiary rule. To read about grounding rules, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 1 (CALI eLangdell Press 2023). ↵
  15. Note that the writer focuses here on what is not admissible, since their client opposes admission of evidence. This is an example of writing rules persuasively by keeping the reader’s focus leaning the same way the rule application will lean. For more on writing rules persuasively, see Nan Haynes, Legal Writing for Clinical Students, Ch. 4 (CALI eLangdell Press 2023). ↵
  16. This is an assertive rebuttal of negative facts. For more guidance on crafting rebuttals, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 5 (CALI eLangdell Press 2023). ↵

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