“The job of local counsel is to make sure that the out-of-state-guy doesn’t screw the pooch on rules of procedure. And here, the rules of procedure were clear: It was unnecessary (and damaging) to have Melania confess her true motives of using the White House for profit, and unnecessary to potentially subject her to sanctions for an impermissible ad damnum clause.”
From blog post by New York Personal Injury Attorney Eric Turkevitz of the Turkevitz Law Firm. The post analyzes the statements on damages contained in the defamation lawsuit suit filed on behalf of Melania Trump in Manhattan, criticizing the attorneys’ decision to claim the loss of “multimillion dollar business relationships” and the “once-in-a-lifetime opportunity” to cash-in on being First Lady as unnecessary allegations that should have been avoided by local counsel due to the negative news coverage the statements received.
News yesterday out of the Trump University litigation was that the “University” is requesting the judge to disallow “evidence and argument relating to statements made by or about Mr. Trump outside of the adjudicative process..”
What is Trump University Seeking to Preclude?
Some of the examples of the evidence in the civil case against Trump “U” that the defense seeks to preclude are:
Statements by campaign surrogates
Audio and video recordings made or publicized during the campaign…
Comments about this case or the Court…
What is a Motion in Limine to Precluded Evidence in a Civil Lawsuit:
The type of evidentiary motion filed in this civil case is generally called a “motion in limine.” In common vernacular, such “motions in limine” are a “a pretrial motion to limit or exclude evidence.” Bd. of Cty. Comm’rs of Cty. of Morgan v. Kobobel, 176 P.3d 860, 862 (Colo. App. 2007).
Why Are Motions Filed to Preclude Evidence?
Used primarily in cases that are heard before the jury, the parties request that the judge rule on certain evidence prior to trial before evidence (such as documents or testimony) is seen or heard, or even a peep uttered by the lawyers before the jury. Motions in limine are routinely filed in criminal and civil cases, including business litigation and other commercial cases. Applicable standards Colorado courts would apply to such request, which would be similar under the Federal Rules of Evidence in the Trump U case (set for trial in San Diego), are generally that the evidence is not admissible and will be precluded if it is irrelevant (under Rule 401), unduly prejudicial (under Rule 403), or improper character evidence (under Rule 404).
Applicable Law of Evidence for Civil Litigation:
As this case is essentially claiming fraud and misrepresentations about the offerings of Trump University, the theories for precluding the types of evidence listed above if under similar doctrines of Colorado law are that:
Rule 401: “Evidence is relevant, in the logical sense, as long as it is ‘evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” Id.. People v. Martinez, 74 P.3d 316, 322 (Colo. 2003) (quoting CRE 401)
Rule 403: “[R]relevant evidence must be excluded, if “its probative value is substantially outweighed by the danger of unfair prejudice.” Id.. People v. Martinez, 74 P.3d 316, 322 (Colo. 2003) (quoting CRE 403).
Rule 404: Guided by the principles above, the application of Rule 404 (Character evidence) is trickier as it tends to help a judge or jury determine what whether the evidence (that is relevant) ought to be believed. Frequently, this type of evidence appears, on its face, to be wholly irrelevant as to substance, but its relevancy may be admitted to assist the jury in evaluating the credibility of a witness.
In general, we favor the admission of relevant evidence but exclude evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ….” CRE 403. Consistent with this principle, evidence of a person’s character or character trait is barred under Colorado Rule of Evidence 404(a) for the purpose of proving that on a particular occasion the person acted in conformity with his character or character trait. CRE 404(a). Exceptions to CRE 404(a) apply for limited purposes and in limited circumstances. See People v. Gaffney, 769 P.2d 1081, 1085–87 (Colo.1989). As relevant here, the exception provided by Rule 608 permits the admission of opinion or reputation evidence to bolster or impeach the credibility of a witness.
The long, slow grind of civil litigation was recognized decades ago by the Colorado General Assembly in enacting Section 13-1-129, C.R.S. (originally enacted in 1990). Things have only gotten worse.
Recent statistics I’ve reviewed from the U.S. District Court for the District of Colorado in Denver reveal that the average civil litigation docket involving at least one discovery dispute is over two years from filing to trial. I estimate no less than ten months to trial for business litigation in Colorado state courts assuming the case can get underway and months are not consumed on the front end dealing with motions to dismiss. My experience is that the Colorado judiciary’s goal to get a civil cases to trial in Colorado state court within a year is merely aspirational, particularly in complex civil litigation requiring trial settings of greater than 5 days of trial. In such cases I expect 12 – 14 months out for a trial date.
The statute referenced above, titled “Prudential trial Dates,” directs the district courts in Colorado to set a civil trial date no more than 119 days out for individuals in the following categories:
individuals at least 70 years of age upon a finding of the court that the claim brought in the civil litigation is meritorious (in such cases the court “may” grant the motion);
individuals able to demonstrate by “clear and convincing medical evidence” that that raises a “substantial medial doubt of survival of that party beyond one year” and the court is otherwise satisfied that an expatiated trial setting serves “interests of justice” (in such cases the court “shall” grant the motion).
While the above applies only to individuals, such may be implicated in Colorado commercial litigation where principals, owners, or individuals doing businesses under a “d/b/a” are parties to business lawsuits. Once the trial date is set, the case is on a pure rocket docket, the Colorado General Assembly specifically directing that all accelerated litigation and procedural deadlines be held firm:
The court shall establish an accelerated discovery schedule in all such cases. No continuance shall be granted beyond the one-hundred-nineteen-day period except for physical or mental disability of a party or a party’s attorney or upon a showing of other good cause. Any such continuance shall be for no more than one hundred nineteen days, and only one such continuance shall be granted to a party.