Thursday, November 20, 2008

How To Prepare Motions In Limine

This is a practical – some would say, impractical – post. One of the blogging duo is currently involved in one of the more headache-inducing aspects of mass tort litigation, the process of putting together motions in limine. So he’s got a few gripes.

The other half has been there and done that. In the spirit of “there but for the grace of God, go I,” he has expressed empathetic frustration. So today we’re going to discuss some dos – and some don’ts – of drafting motions in limine, with an emphasis (duh!) on mass pharmaceutical/medical device torts.

Select – We don’t presume to tell anybody all the motions in limine to file in any particular mass tort. Obviously, that varies with the litigation. It seems, though, that every company has a couple of people who don’t quite grasp that snarky things put in emails, or making off-the-wall marketing proposals – even if nothing comes of them – can come back to bite the company itself in litigation. Because the range of some people’s obtusity (is that even a word?) is seemingly endless, every mass tort will present at least some new or different motion in limine possibilities.

But the key to selecting motions in limine is the same as much of the rest of the process – on the whole, motion in limine practice isn’t plowing new ground. Chances are, if you haven’t done this before, somebody else at your firm has. “Don’t re-invent the wheel” is the first principle here. Save the client’s money, for chrissake. So, step one, which seems obvious, but can’t be overstated, from the partner in charge of the whole shebang to the junior associate drafting the most mundane of motions, is to review the motions in limine that your firm’s already filed in similar litigation.

Next (or if you’re truly new to the game, first), go to Westlaw and Lexis. The services have been bulking up on filed briefs and motions for a number of years now. Most, if not all, of the opinions in the major pharma/device mass torts – you know, the ones that read “In re [fill in the blank] Products Liability Litigation” – have links to scores (sometimes hundreds) of pretrial filings, including lots and lots of filed motions in limine. Reviewing what’s been filed in two or three mass torts involving similar products/issues (e.g., drug vs. medical device; on- vs. off-label use; recall vs. no recall) should provide a pretty good sample of what’s out there. Add to that some common sense, and a careful review of the litigation’s particular “bad documents” and expert reports and presto! A list of motions in limine emerges.

Standardize: Only “foolish” consistency is the “hobgoblin of small minds.” If there are going to be two dozen different motions in limine (and, sadly, that’s a conservative number in many mass torts), they should look pretty much alike. To some extent, it’s simply a matter of the particular law firm’s style – how the footnotes will look, whether the text is justified or not, that kind of thing. Some stylistic decisions are driven by rules of court – whether letter-brief format required, whether footnotes be in a smaller typeface. Gotta get these right. The first thing actually to draft is thus a standard form for all motions in limine. We emphasize first. It’s far easier to get the right caption, headings, paragraph/footnote styles, signature blocks, etc. done once than to reverse engineer two dozen (or more) individual draft template motions, or worse, a hundred motions in limine after they’ve been cloned for filing in individual cases.

So start with a standard form, and distribute it to everyone who will be preparing drafts.

Templatize: Mass torts are repetitive. Most of the legal issues covered by motions in limine will recur in, if not all of the plaintiff’s cases, then in a significant subset. Some motions in limine, making a purely legal point, will be identical for all cases – at least at first. In others, facts unique to individual cases will have to be added to a legal argument that’s essentially the same.

For ease of use, and for ease of updating, it’s usually best to prepare motions in limine in template form, complete with fill in the blanks and alternative paragraphs for recurring fact patterns. The templates can then be distributed to the various case teams, or to local counsel, for adding case-specific facts.

Preparing a template motion means something else, too. The template needs to be absolutely the highest quality work product. We know, everything is supposed to be the best we can do, but the reason why it’s called a “template” is because it’s going to get filed over and over again. A lot of other lawyers are going to see it, use it, and revise it. It’s not a good idea – for you or for your firm – if these other lawyers feel compelled to re-do parts of it that you’ve written, and that aren’t supposed to need revising.

Once templates are prepared and approved, they need to be kept in one place, presumably a file in the litigation’s computer work space. Preferably one person should then be charged with updating all the templates once they are actively being used in litigation. Some changes will, of course, be adaptations to address opposing arguments, or developments in the jurisdiction’s case law. Another set of updates will be to include favorable rulings on the motion when presented in individual cases – especially if multiple judges are trying cases.

This last point is really important. It’s the reason for filing essentially the same motion over and over again. The point is to file a motion in limine and win. That makes the next motion easier – if our next version isn’t just a refiling of the original motion. Rather, we update the original template motion to tell all subsequent courts that this precise issue has already been litigated, and our client won. The whole point is to build your own favorable – and indistinguishable – precedents. Don’t let them go to waste.

Often there will be a set of exhibits to be filed with a template motion. It’s a good idea to collect all the exhibits together, attach them all to something like an email and archive the set of template exhibits together with the template motion itself. That way nobody ends up scrounging around (inevitably at the last minute) for exhibits ever again.

Organize: Document naming conventions are an oft-overlooked aspect of keeping track of motions in limine. After the trial phase gets well underway, there are going to be dozens of similar looking documents in your firm's document database. Since the templates are being constantly updated, it's crucial not only to know what's what, but when a particular motion was filed. The document names for all motions in limine should provide the necessary information without having to individually open up and review the document itself. All Templates should be designated as such. The names of motions filed in individual cases should include both the name of the case and the date (month and year are fine) of that case's motion deadline. Making sure this is done in advance saves a lot of time later on.

Plagiarize: Now we’re talking to the (probably) associate assigned to draft specific motions. The "don’t reinvent the wheel" principle applies here, too. By now most (we would like to say all) firms have full-text searching capability for their own documents. Know how to do this and use it. It saves you time and the client money.

But don’t stop there. Many, probably most, motions in limine have been filed before in other litigation. Lots of those motions are on Westlaw or Lexis. There’s a reason why it takes so darn long for a Vioxx or Rezulin or fen-phen opinion to open up when you click on it while doing computer research. That reason is all the links supplied at the end of the opinion to all the briefs filed in these big mass torts. Use them, too.

Customize: This is the flip side of the plagiarize principle. If all it took to prepare a motion in limine was copying a prior brief and putting a new caption on it, that task wouldn’t have been assigned to a lawyer. For one thing, the jurisdiction is likely to be different. That means that the citations for the boilerplate propositions – like who bears the burden of proof – need to be watched.

If the motion is being filed in, say the Eastern District of Arkansas, then we’ll want to see Eighth Circuit precedent for such routine propositions. A Third Circuit case, left over from some other brief, not only looks odd, but it will make the court (and us) question whether the relevant appellate court (judges don't like being reversed) actually adheres to the principle we’re relying on.

“Proper law” also means, where there are lots and lots of cases for the same proposition, citing one that: (1) comes to the “right” result (exclusion or admission, depending on which side the motion is arguing), (2) is in a civil, rather than a criminal case – ideally in another product liability case, and (3) best of all has something else to do with the motion (recognizing that this last point is not always possible).

Simply picking the first case that shows up for the proposition in a long list of computer generated citations is not a good idea.

Customizing also means plagiarizing from more than one earlier brief. The first one you find might not be very good. That’s a fact of life. There are a lot of bad briefs in the Lexis and Westlaw databases – and presumably in law firm internal databases (present company excepted, of course). A way that often works quickly is to click on the “citing references” link for a key case, such as the Rezulin case for excluding corporate intent evidence or the Norplant case for excluding marketing materials that the prescribing physician never saw. Cases like that will be cited in just about every motion in limine available online (and you wouldn’t want to read motions that miss the most important case, anyway). Read through enough motions in limine on the same topic, and it’s pretty easy to synthesize an argument that’s actually better than any single brief that you’ve read.

Finally, there are a bunch of pickier details that, if we’re reviewing a draft, we don’t think it should be our responsibility to fix. Is it one plaintiff or more than one? Make sure the cloned motion uses the correct number (singular or plural) of plaintiffs. Is the plaintiff male or female? Make sure the pronouns are for the right sex. Is the jurisdiction a “state” or a “commonwealth”? Things like that. Those kind of picayune things should be handled at the initial cloning stage. They shouldn’t be the responsibility of the more senior people who are editing these briefs for substance.

Write For The Judge: Is the motion in limine a letter brief to be filed in state court, or a global motion that will decide the point for a bellwether trial in a federal MDL? The answer to that question will have a lot to do with how motion will look. A state trial judge with limited help from clerks isn’t going to read a ten-page argument citing every case anywhere that excluded adverse drug experience reports as unreliable. But that might well be precisely what an MDL motion, particularly in a bellwether situation, is supposed to argue. Know the situation and write the motion accordingly.

When in doubt, though, put it in. If we're reviewing the motion, it’s better to have and not need an argument than to need it but not have it.

Write For The Facts: “Bad documents” come in an almost infinite variety of forms and topics. Every mass tort we’ve ever been in generates quite a few “that’s irrelevant” (Fed. R. Evid. 401-02) or “probative value outweighed by undue prejudice” (Fed. R. Evid. 403) motions in limine. These motions present special challenges.

There’s plenty of precedent – an overwhelming amount, actually – about Rules 401-03. What we want to see cited as precedent are those cases with similar fact patterns, such as: (1) It was a dumb marketing idea, but it never saw the light of day, so it’s irrelevant. (2) That proposal might well have violated the FDCA, but we didn’t use it, or if we did, only in some state halfway across the country, and you shouldn’t let plaintiffs tell the jury that the client a criminal over something that remote. (3) That involved a dose three times what the plaintiff ever took. We’ll have to introduce in a whole new set of studies to address it.

No 1: Irrelevant. No. 2: Undue prejudice. No. 3: Collateral and a waste of time.

So how do you find the needle in the haystack?

We’re assuming there’s nothing out there in terms of other briefing. Also easy sources – drug-related headnotes, Bexis’ book, ALR articles – have been reviewed without success. So don't blame us (well, maybe Bexis, for leaving it out of his book) for your predicament.

At this point more general keynumbered headnotes are unlikely to be of much use, because evidentiary rulings tend to get grouped by substantive subject (criminal law, contract law, ladders, etc.). We’re beyond that at this point. So now what?

The one place online where all (well, most, but a very high percentage) of the potentially relevant cases are found in one place are in the annotations to the relevant evidentiary rules. Once that window is open, then it’s possible to focus the search, either by some term (“off-label” perhaps, or even “different”), or by jurisdiction. Narrowing the search in that way lets the searcher click through all headnotes under the rule that are in the targeted jurisdiction (say, the Seventh Circuit and the Southern District of Illinois), or all cases ruling on when off-label promotion is too prejudicial to be admissible.

If that doesn’t work – and sometimes it won’t – you’re back to the general libraries. At that point, you’re just going to have to read a lot of cases. Get over it. Life isn’t fair.

A Special Note About State Motions: State motions in limine are a lot like federal ones, except that the number of relevant cases is likely to be less – not if you’re comparing the Northern District of Iowa with the whole state of California – but in general. It’s possible to find state-court motions in limine in some jurisdictions, particularly where there are state-law equivalents to federal MDLs (one of Herrmann’s favorite topics).

But there might also be actual state trial court rulings on some of these topics. So, how do you make sure you get them? Now it doesn’t seem to be much of a problem on Lexis, but on Westlaw they’ve gone and created a whole new set of libraries just for state trial court opinions (“trialorders”). A good thing? You would think, but you have to be careful.

The problem is, on Westlaw, the trialorders databases are kept separate. If you search in the state-specific database for what’s supposedly “all” the cases in the state, you don’t really get “all” the cases.

What? You tell me that, if I search “all,” I don’t get “all.” What do I get?

Less than all, that’s what. You only get all the appellate cases – and in some states trial court opinions that are actually published in some sort of reporting service.

We know. We know. We’ve had this discussion with Westlaw ourselves.

On Westlaw, it’s necessary to search the trialorders databases (and there aren’t ones for every state) separately. Now, Westlaw has its reasons for doing things this way (we disagree, but it’s their business), but for us lawyers – especially junior lawyers drafting this sort of motion – it can be a trap for the unwary. So when putting together a state-court motion in limine, if you’re using Westlaw, remember to check separately for relevant state trial-level decisions.

Do all these things, and chances are you’ll end up involved with a lot of motions in limine. Hey, ditch the queasy feeling. Like having another birthday, it may well beat the alternative – at least until you’re senior enough to be giving, rather than receiving, this kind of advice.

4 comments:

Anonymous said...

Good post guys. Very useful. I presume a lot of firms have this sort of protocol on an informal basis, but it's nice to see it laid out succinctly. Keep up the great work!

Anonymous said...

That's good stuff. An important thing you allude to is this -- sometimes the most important thing about filing motions in limine is not filing them. That is, like all advocacy, decide what is most important and what can help your case the most, but overwhelming the Judge has diminishing returns. Many times clients/out of state counsel want to insist on "bringing out the usual suspects" but that is not always the best strategy/hobgoblin.

It is also important to know the law in your jurisdiction about whether you need to raise the objection again later at trial if your meritorious MIL is inexplicably denied, so as to preserve the error.

Hey guys, don't let all the plaudits from the luminaries of the legal media world get to you, please keep up this great stuff for the slobs in the trenches.

Anonymous said...

Dudes, could you blog a little about Justice Scalia's quip at oral argument on the Levine case? He said to 'sue the FDA' at one point but isn't that mostly precluded by Berkovitz v. U.S., 486 U.S. 531 (1988) since regulatory judgments are mostly discretionary?

Preclusion obtains under the FTCA "whether or not the discretion involved be abused."

So let's say there are shenanigans at the FDA, and shit happens -- a product is labeled sub-optimally, but this sub-optimal decision is within the FDA's sphere of discretion. Let's also say that drug companies are 'covered' by preemption doctrine against state tort law claims even though the FDA suits involved plainly abused their discretion in coming to a labeling judgement about the drug.

Will the plaintiff have no recourse? What would be the defense bar's riposte to such a situation, as a matter of policy?

(I think Wyeth ought to win soundly btw, but this 'problem' of suing the FDA nags at me.)

Beck/Herrmann said...

We've never practiced FTCA law, but Anonymous #3 put his finger on the core issue, which is the discretionary function doctrine. We doubt anybody could sue the FDA over a product approval - that's too discretionary. What might be allowed, and this is speculation, is if the 'sub-optimal' labeling were due to a scriverner's mistake at the FDA, such as accidentially crossing out a "not" in reviewing proposed labeling, or accidentially omitting a condition from the list of adverse reactions. That might be sufficiently ministerial as to fall outside the discretionary function rule.

It may well be that plaintiffs in certain situations are out of court. That's what preemption does. If it didn't result in the dismissal of claims, it wouldn't be such an important defense.