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Simon Bailey and Stephen Fritz are litigatorsin the Jackson office of Bradley Arant BoultCummings LLP. Both have diverse litigationpractices that include appeals in state andfederal courts across the country.Bailey Fritzmotion in limine preserves for appeal whatever ground(s) the motion argued withoutrequiring a contemporary objection.5You should probably think long andhard about relying solely on a denied motionin limine. The Supreme Court itself says the%u201cpreferable%u201d and %u201cby far the safer practice%u201d isto renew the objection contemporaneously attrial.6 If you do not, only the specific groundsarticulated in the motion are preserved, notadditional grounds that emerge during trial7and not necessarily objections to particularquestions or answers.8What about when you win a motion inlimine, but the other side starts to offer evidence that should be excluded? In Mississippi,an order in limine is %u201ca binding court orderinstructing opposing counsel%u201d not to reference the evidence in the jury%u2019s presence. Ifthat order is violated, the movant %u201cshouldnot be required to voice an objection in thejury%u2019s presence.%u201d9 Still, it is safer to object. Youalready know the court agrees with you on theissue, so making the contemporary objectionshould result in the evidence being excluded.Doing so avoids any whiff of a waiver argument on appeal and any suggestion that theevidence at issue was beyond the scope of thein limine order.Rule 50 MotionsIn civil jury trials, Mississippi Rule ofCivil Procedure 50 motions are anotherplace to preserve the record.10 These motionsadvance the legal arguments for why you winon the evidence presented, and on appeal theyprovide a straightforward citation to showyou preserved a legal issue. As with evidentiary objections, the motions must specify theground(s).11Making one of the Rule 50 motions%u2014fordirected verdict or judgment notwithstandingthe verdict (JNOV)%u2014is required to challengethe evidence%u2019s sufficiency.12 Unlike in federalcourt, however, in Mississippi %u201ca party mayraise an issue in a post-trial motion for JNOV5Goff v. State, 14 So. 3d 625, 640 (Miss. 2009).6Id.7Wilson v. State, 149 So. 3d 544, 551%u201352 (Miss. Ct. App.2014).8Moffett v. State, 49 So. 3d 1073, 1106 (Miss. 2010).9Whittley v. City of Meridian, 530 So. 2d 1341, 1344 (Miss.1988); see Lewis v. State, 354 So. 3d 323, 325%u201326 (Miss.Ct. App. 2022) (applying this rule). Other jurisdictions havedifferent rules. As always, check your local listings.10In a bench trial, the equivalent is a motion for involuntarydismissal under Miss. R. Civ. P. 41(b). Rice v. Merkich, 34 So.3d 555, 557 n.1 (Miss. 2010).11Miss. R. Civ. P. 50(a);12Hobgood v. Miss. Power Co., 130 So. 3d 133, 134%u201335 (Miss.Ct. App. 2013).under Mississippi Rule of Civil Procedure50(b) even if it failed to raise the issue at trialin a motion for a directed verdict under Rule50(a).%u201d13 Thus, if you move for JNOV withinthe allotted time%u201410 days after entry of judgment%u2014the court can grant the motion even ifyou did not previously seek a directed verdict.In federal court and in other jurisdictions, the motion during trial takes on greaterimportance because the post-trial motion%u2019sscope is limited by it. For that reason, youshould begin drafting your motion for directed verdict (a motion for %u201cjudgment as a matter of law%u201d or %u201cJMOL%u201d in federal parlance)before trial and then decorate that motionwith evidence as the trial evidence comes in.Only with that preparation will you be readyto file the motion at the close of your adversary%u2019s case and at the close of all evidence. Agood written motion, submitted at the sametime you argue the motion orally, will ensurethat you get your arguments in the record.Jury InstructionsThe jury instructions and verdict formare perhaps the most important aspects ofrecord preservation: %u201cNo party may assignas error the granting or the denying of aninstruction unless he objects . . . before theinstructions are presented to the jury.%u201d Again,the objection must be on the record and muststate a specific ground.14To preserve error, you should submityour own proposed written instructions ata final pretrial hearing or at least 24 hoursbefore trial.15 As to each instruction ultimatelyomitted that you think should be given and asto each instruction ultimately given that youthink should be omitted or modified, youmust object. Judges typically carve out timefor these instruction-by-instruction objections in a formal charge conference towardthe end of a trial.This flashpoint in a trial, the chargeconference, heightens the importance of theinstructions and verdict form. It is a point inthe transcript that appellate judges and theirlaw clerks can easily find and review to discernthe parties%u2019 legal positions. Likewise, the written instructions and verdict form themselvesare a clear, easy-to-locate portion of what maybe a daunting record.From an appellate perspective, the chargeconference is fraught with opportunities towaive objections. Judges modify the instruc13Miss. Valley Silica Co. v. Barnett, 227 So. 3d 1102, 1120(Miss. Ct. App. 2016), overruled in part on other grounds asstated in Portis v. State, 245 So. 3d 457 (Miss. 2018).14Miss. R. Civ. P. 51(b)(3).15Miss. R. Civ. P. 51(b)(1)-(2).tions in real time and with live input fromcounsel in the courtroom. This process requiresquick thinking, mental dexterity, and caution. Even if you have made an objection toan earlier version of a particular instruction,failure to make a clear objection to a versionthat a judge modifies in court constituteswaiver.16 While you are allowed to proposerevisions to instructions you think ought to beomitted altogether, you should be very carefulabout your statements regarding such revisions.A seemingly harmless %u201cOkay%u201d or %u201cYes, yourHonor%u201d in the transcript may read to some likea withdrawal of a prior objection even if thatwas not your intent.17 Because of these dangers,you have to choose your words very carefullyduring the charge conference and know theinstructions%u2014yours, your opponents, and thecourt%u2019s%u2014backward and forward.It is funny, in a way, that the jury instructions and verdict form both play such a largerole in many appeals and keep lawyers awakeat night. There is a mountain of social scienceresearch showing that %u201cjurors do not remember, understand, or apply the judge%u2019s instructions correctly.%u201d18 Research conducted on mockjuries and focus groups shows that jurorstypically understand only 50% to 70% of theinstructions given and %u201crely on factors otherthan the instructions to decide their verdict.%u201d1916See, e.g., Roberson v. State, 838 So. 2d 298, 305 (Miss.Ct. App. 2002).17Compare Friley v. State, 856 So. 2d 654, 656%u201357 (Miss. Ct.App. 2003) (Southwick, J., concurring) with id. at 659%u201362(Griffis, J., dissenting).18Phoebe C. Ellsworth & Alan Reifman, Juror Comprehensionand Public Policy: Perceived Problems and ProposedSolutions, 6 Psychol. Pub. Pol%u2019y & L. 788, 788 (2000).19Chantelle M. Baguley, et al., Deconstructing the Simplification of Jury Instructions: How Simplifying the Featuresof Complexity Affects Jurors%u2019 Application of Instructions, 41Law & Hum. Behav. 284, 285 (2017).SPRING 2025 23