Update (2/10/11): News settles with Insignia after one day of trial for $125 million. Congratulations to the lawyers of the Chicago office of Kelley Drye & Warren LLP, counsel for Insignia, which had to fight every step of the way in this multiyear litigation. Insignia’s CEO, Scott Drill, is a poker player but there was no bluffing here.
Original post (2/7/11): Minnesota Litigator has heard it said by deeply experienced Minnesota civil trial lawyers that one should exercise self-restraint, triage, when bringing “motions in limine” — that is, the evidentiary motions brought by trial lawyers on the threshold of trial (i.e. before trial) brought to exclude (or, occasionally, to include) particular evidence or testimony.
In any significant case, with potentially hundreds if not thousands of pieces of evidence expected at trial (whether testimony or physical evidence (most often documents, photos, and the like)), where is the smart litigator to draw the line? How many threshold questions will the Court want to entertain? How thoroughly will the Court be able to analyze 10 “MILs”? 20? More?
Seven or eight at most. That is the magic range that a senior big firm trial litigator counseled me and others to be the uppermost limit years ago. The rule of thumb is perhaps borne out in the Insignia Systems, Inc. v. News America case (covered by Minnesota Litigator previously here).
On the threshold of trial, Insignia Systems, Inc. and News America Marketing In-Store went for four and nine motions in limine respectively for a total between the two of 13 motions to be decided by U.S. District Court Judge John R. Tunheim (D. Minn.).
Insignia went two for four. News, judging solely on a numerical basis, fared worse on its nine motions in limine, with one win, five losses, and three ties (motions granted in part/denied in part, or deferred to be ruled on at trial).