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Even A Blind Squirrel Finds An Acorn Sometimes

This is about expert testimony, Motions in Limine and a lesson in humility. You can’t try cases without learning humility. For some of us this happens more often than we’d wish, but, fortunately, just often enough to keep our hat sizes reasonable and our mirrors appropriately unforgiving.

What brought this to mind was a recent case I had which involved expert testimony. I was compelled to traverse the unfamiliar terrain of legal research and in my travels I once again learned the oft-taught lesson that the more things change, the more they are the same.

Expert Testimony

What’s all the rage in the field of expert testimony these days is the Daubert case. (Citations, like ties on casual Fridays, are optional. I exercise that option.) Daubert, and in Connecticut, Porter, have lawyers and judges all aflutter. These cases pretend to transform judges into “gatekeepers”, requiring them to rule whether scientific and other expert testimony may be admitted into evidence before the factfinder. This involves a weighing process and a determination whether the proffered evidence will assist the factfinder – judge or jury – in its task.

Reaction in the legal community to these two cases and their progeny (Kumho is the latest US Supreme Court case, extending the gatekeeping concept to all expert testimony, not just the scientific) is fascinating. Everyone is atwitter. The Daubert/Porter/ Kumho holdings are treated with such breathless awe you’d think the judicial department had installed blackjack tables in the Waterbury Courthouse. Lawyers run around believing they have discovered a new battery-powered evidentiary toy which whirs, pops and fizzes like no other. And judges, collectively, seem to be puffing up their chests, strutting across the trial stage and saying “Look out, folks. We’re the gatekeepers. Now we’ve got some real power. Stand back and watch our stuff.”

Well pardon me, but what have I missed. Haven’t judges always had the power and the broad discretion to admit or exclude evidence? Isn’t that what they get paid for? Does it really make any difference if someone calls them “gatekeepers”? Come on, fans. Sure there are some added bells and whistles, but these are the same judges with the same powers they have always had.

Now, because the judges are “elevated” to gatekeepers we lawyers somehow feel compelled to give them something about which to open or close the gates. How do we do this? Well, if there is expert testimony, we ask the judge to hear the evidence before the factfinder does. That way we can have the judge test it out first. If it’s not good enough to go before the jury, then the judge won’t have to instruct them to disregard what they’ve just heard. It’s better than a late objection and it saves on the confusion factor.

Motions In Limine

But, wait. For a long time good lawyers in Connecticut with even a half-decent sense of how the mind works have been doing exactly that. They file Motions in Limine (Lim-in-ay), asking trial judges to rule on the admissibility of potentially problematic evidence before the jury hears it. And the judges, even without the agrarian sobriquet of “gatekeeper”, routinely hold hearings out of the jury’s presence about the challenged evidence and decide whether admitting it is more prejudicial than probative.

The Motion in Limine is now codified in the Practice Book. For many years it was not. Occasionally our Supreme Court would make passing reference to its absence while nevertheless recognizing its existence and usefulness.

The point is, of course, that except for the bells and whistles Daubert/Porter/ Kumho don’t really change all that much. Oh, sure, judges have to genuflect slightly toward a check list in the weighing process, but the mechanics are the same. And the rulings are reviewed by an abuse of discretion standard.

The Lesson In Humility

The Motion in Limine has become a frequently used arrow in every trial lawyer’s quiver. How it arrived in Connecticut is another story.

Rudolph Lion Zolowitz was the psychic lawyer for the psychic Reverend David Bubar, the supposed mastermind of the l975 arson of the Sponge Rubber factory in Shelton. The three-month trial in federal court before Judge Newman is a trove of anecdotes, lore and other apocrypha. The bizarre Zolowitz was by turns amusing, irritating and frustrating. His ineptitude was obvious and his legal “skills” were universally derided. No one scoffed more than I. It was time for me to be taught a lesson.

One day Rudolph sauntered into Court and handed the courtroom clerk a document. He hand delivered copies to the prosecution and similarly graced his six co-counsel. I was at the Government table, an Assistant United States Attorney, doing battle with a phalanx of real lawyers led by the legendary Ted Koskoff. I felt I didn’t have time for Zolowitz, a cartoon of a lawyer who merely distracted me from my mission.

What was this document he was bothering me with. I looked at it quickly. It was styled a—you guessed it— Motion in Limine. “What the hell is this”, I said to the prosecutor next to me, “A Motion in Lah Mine?” (No one else had ever seen one of these and my mispronunciation went un-noticed.) I had been around, your see. I had practiced in Our Nation’s Capitol. I had seen many good lawyers. I had read many books. I was a federal prosecutor. I had never even heard of a Motion in Lah Mine. It must not exist.

Here was the lowly regarded Zolowitz pushing some bogus papers asking a distinguished federal judge to rule on an evidentiary matter outside of the presence of the jury. It was obvious to me that all he was doing was impeding the orderly process of the trial. I’m certain no else in the courtroom had ever heard of a Motion in Limine before. We were all rolling our eyes and shaking our heads. Just another legal blunder by Mr. Malaprop. No one could be bothered to take this seriously.

No one, that is, except Judge Newman. Uninfected by my arrogance and wise enough to understand that no one has a monopoly on good ideas, he recognized the common sense inherent in the motion, never mind it came from will ‘o the wisp Zolowitz. Judge Newman granted the motion, held a hearing and ruled on the evidence.

So much for my know-it-all approach. You can always learn by watching others. A lesson much needed and superbly taught.

That’s how the Motion in Limine came to Connecticut. After the Sponge Rubber trial, others began to use Zolowitz’ innovative motion and it caught on. It’s been here ever since.

So, to the Daubert, Porter and Kumho enthusiasts: Chill. You’re just dealing with the acorn Mr. Zolowitz found for us.