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By: Jacob E. Daly
Since the mid-1800s, Georgia law has required attorneys to object on the record to an alleged error at trial at the earliest possible opportunity in order to preserve the alleged error for consideration by the appellate courts. Known as the contemporaneous objection rule, its rationale is that the trial court should have an opportunity to correct the alleged error at the time it is made because correcting an error at that time reduces the possibility of a new trial being required following a post-trial motion or an appeal.
Over time, the Georgia Supreme Court held that a contemporaneous objection is not required when the alleged error was the subject of a motion in limine. For example, the Court modified the contemporaneous objection rule in 1979 so that the denial of a motion in limine relieved the moving party of its obligation to object when the disputed evidence was introduced at trial because the motion and the trial court’s ruling were deemed sufficient to preserve the alleged error for appeal and because requiring the moving party to renew its objection would highlight the objectionable evidence to the jury.
Similarly, the Georgia Supreme Court held in 1982 that the moving party was not required to object when excluded evidence was erroneously introduced or made at trial in violation of an order granting a motion in limine because objecting would defeat the purpose of the motion and would also highlight the improper evidence to the jury. During the ensuing decades, the Georgia Court of Appeals held that these modifications to the contemporaneous objection rule applied not only to evidence, but also to statements and argument by counsel.
This was the state of the contemporaneous objection rule in Georgia until earlier this year when the Supreme Court decided Williams v. Harvey, 311 Ga. 439 (2021). The Court began its analysis with O.C.G.A. § 24-1-103(a), which was enacted as part of the 2013 Evidence Code (and, therefore, was not in effect when the modifications discussed above were adopted). This statute provides that “[o]nce the court makes a definitive ruling on the record admitting or excluding any evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve such claim of error for appeal.” Because this statute is virtually identical to Rule 103(b) of the Federal Rules of Evidence, the Court looked to the Advisory Committee Notes for this federal rule as persuasive authority for interpreting the state rule.
The Advisory Committee Notes for Rule 103(b) provide that a contemporaneous objection must be made when the trial court’s ruling on a motion in limine is violated at trial. Although this seems to be contrary to the plain language of both the state statute and the federal rule, the Advisory Committee Notes explain that a contemporaneous objection is required because the trial court could change its pre-trial ruling on a motion in limine during the trial. After all, any error lies in the admission or exclusion of the evidence, not the grant or denial of the motion in limine. Thus, in accordance with the Advisory Committee Notes for Rule 103(b), the Court in Williams interpreted O.C.G.A. § 24-1-103(a) as requiring a contemporaneous objection when a trial court’s ruling on a motion in limine is violated at trial (with respect to both the introduction of evidence and statements and arguments made by counsel) in order to preserve the error for appeal. “This approach is preferable and far more efficient than the alternative, in which the aggrieved party can sit back and make no objection in the hope of either a successful verdict or, in the event of a loss, persuading the trial court or the appellate court to reverse much later in a motion for new trial or on appeal.” Williams, 311 Ga. at 447.
Williams is also noteworthy because of Justice Bethel’s concurring opinion in which he lamented the common practice of filing “generalized, vague, and overly broad” motions in limine. Id. at 454 (Bethel, J., concurring). For example, the defendants in Williams filed motions in limine that challenged 40 types of evidence and argument, many of which were “vague and simply restated basic law.” Id. The motion at issue in Williams asked the trial court to exclude evidence and argument that would “overly inflame the emotions of the jury or [elicit] excessive or undue sympathy, hostility, or prejudice for or against either party.” Id. at 452. The majority described this motion as “so vague and overly broad as to render it virtually meaningless.” Id.
Justice Bethel expanded on the majority’s criticism of this motion by noting that it did not identify any specific evidence or argument that should have been excluded. According to Justice Bethel, motions like this, which essentially ask the trial court to follow the law, are not helpful because they cannot accomplish any of the benefits that motions in limine provide. Thus, Justice Bethel urged, litigators should file motions in limine that are tailored to the specific issues in a case because they can help a trial proceed efficiently and without undue prejudice. However, Justice Bethel encouraged litigators to avoid filing boilerplate motions in limine that cannot promote these goals.
Recently, Judge Jane Manning of the State Court of Cobb County authored an article that was published in the Daily Report in which she echoed Justice Bethel’s comments in Williams. In fact, Judge Manning went a step further and opined that motions in limine have been “so misused and abused” that they no longer have much effect. In her experience, many motions in limine are boilerplate, are not tailored to the evidence, and have not been updated in many years. Specifically, she regularly sees motions in limine that cite cases that were decided before the 2013 Evidence Code was adopted, which drastically changed certain areas of evidence law. Judge Manning concluded her article by declaring that she will no longer spend countless hours drafting orders on motions in limine and will instead treat all motions in limine as objections at trial.
Much can be learned from Williams. Primarily, it establishes a clear rule for preserving error in the context of a motion in limine. Secondarily, it should cause trial counsel and appellate counsel who work with them to think twice about whether they should bother filing certain motions in limine that they have routinely filed throughout their careers.