Difference between Motions to Strike, Suppress, and in limine? In U.S. practice what are the differences between the following: Motion in limine Motion to Strike Motion to Suppress I gather that the first is only applicable before evidence is presented, and the latter two are only applicable after evidence has been presented to a court. But is there overlap between them? If there are distinctions could you provide hypothetical examples to illustrate those?
In U.S. practice, A motion in limine is a motion seeking to rule on the admissibility of evidence at an evidentiary hearing or trial (usually a jury trial) in advance of the actual introduction of the evidence in order to allow greater certainty in trial preparation and a fuller legal explanation of the positions of the parties for the judge to consider than an oral objection and argument during a trial. A motion to strike is a motion seeking removal of a document from consideration by a court because it has been filed improperly and possibly its removal from the court record entirely. It is provided for in the federal rules and most civil procedure rules based upon it in rule 12 where it is authorized to remove "redundant, immaterial, impertinent, or scandalous matter" be striken. For example, one might move to strike information revealing a trade secret that is attached to a court document, or the addition of an exhibit to a response to a motion to dismiss or motion for judgment on the pleadings that is supposed to be resolved based upon documents already filed only. Usually, a motion to strike wouldn't apply to trial evidence. But, a motion to strike a jury demand, however, is really a motion to deny a request for a jury and not actually a request to remove the jury demand from a court file. But, the traditional name has struck. A motion to suppress would usually come up in a criminal case, asking that evidence illegally obtained by law enforcement not be presented as evidence in a case. This kind of motion to suppress is really a just sub-species of a motion in limine. Another kind of motion to suppress, usually in a civil case, would be a motion seeking to limit who has access to a court file, usually out of privacy concerns.
Usually these words refer to whether something (e.g. a law or government action) is or is not in accordance with the Constitution, including its amendments, as currently interpreted by US courts including the Supreme Court. So in view of Chaplinsky, the Constitution (as interpreted) does not protect "fighting words", and therefore a law that forbids "fighting words" is constitutional. As phoog points out in the comments, the word can also be used to refer to whether something is in accordance with the Constitution, as the speaker thinks it ought to be interpreted. So somebody might say that a certain law or action is (un)constitutional, even if a court has not considered it, if their own personal interpretation of the Constitution is (or isn't) consistent with it. Or, if a court has struck it down (or upheld it) but the speaker thinks they erred in doing so.
The pre-action protocols are part of the Civil Procedure Rules (CPR) which governs proceedings in the County Court, High Court, and Court of Appeal (see Rule 2.1). They set out what the parties should do before initiating proceedings in court. Being practice directions, they are not rules, but you ignore them at your peril; failing to do so will not affect the outcome of your case but can have cost implications or, in the most severe cases, result in sanctions (see paragraphs 13 - 15 here). There is a general pre-action protocol and a set of specific pre-action protocols for particular types of cases. If there is a specific protocol for your case, you follow that, otherwise you follow the general one (see paragraph 2). The full list of specific pre-action protocols can be found here. Note that there is another list contained within the general pre-action protocol at paragraph 18 but this list is not complete. This is rather unfortunate because paragraph 18 contains the phrase &quot;the table sets out the protocols currently in force&quot; and, below the table, &quot;Updated: Wednesday, 6 April 2022&quot; (which implies, incorrectly, that any older protocols not appearing in the table are not currently in force). I suggest using the first list. &quot;How long does it typically take?&quot; This varies depending on the protocol being followed. See for example paragraph 6 of the general protocol which, without being prescriptive, suggests that a reasonable time for a defendant to respond to a pre-action letter is 14 days in a simple case and 3 months in a complex one. &quot;pre-action protocol (PAP) must be completed before a case is brought to court in England-and-Wales&quot; This is incorrect. Per paragraph 17 of the general pre-action protocol, if you are close to the limitation period, you can start proceedings and then apply for a stay to give you time to comply with the protocol.
Your assumptions are incorrect. Courts allow oral arguments (when they do allow them) so that attorneys have a chance to better address a judge's concerns. The idea is that it lets an attorney not only present the core of his case, but it also lets him address any problems with his reasoning that the judge may have or help the judge explore a complicated question. Without that all you have is the back-and-forth in writing with opposing counsel, which is useful, but may not actually address the issues that are important to the judge. There is some difference in how you present arguments on paper as opposed to in oral argument, but the distinction is largely one of style rather than substance. An argument that is great on paper is still great when presented out loud, you just present it differently because you are presenting it in a different medium. For example, you have to present oral argument with the assumption that the judge may interrupt you at any time to ask a question they are interested in, derailing your entire pre-planned argument into a tangential point the judge considers important. This is great because it lets you address what the judge is concerned about, but it requires a different preparation and some changes to the format of your argument. For example, while you will front-load both oral and written arguments with a roadmap, both your roadmap and your first sentence are much more important in oral argument.
If a law is struck-down as unconstitutional, but all the precedent used to find it unconstitutional gets reversed; what becomes of the law? In U.S. law, the law has effect again, unless it has been amended or repealed in the meantime. Is it totally dead, needing be passed anew? In the U.S., no. It is not totally dead. It is merely dormant. It stays on the books and legislators may decide not to repeal it as a political statement. It also might be considered for interpretive purposes when construing another part of the same law. For example, the meaning given to a phrase in an unconstitutional part of the law might be applied to a different part of the law that is constitutional. Can the judiciary be asked to reinstated, after which point it can be used again? In the U.S., any court can determine that a law is unconstitutional, but the extent to which that ruling is binding precedent on other courts or other parties than those to the case before it depends upon the court in question and upon the doctrine of collateral estoppel (a.k.a. issue preclusion). For example, the legal fight in the U.S. to hold bans on same sex marriage to be unconstitutional was fought in and resulted in ruling in dozens of courts at the trial court and state appellate court, and federal intermediate appellate court level before a uniform ruling was established by the U.S. Supreme Court. Further, even if the issue arises in another case where there is a controlling precedent, attorney ethics permit an attorney to make a good faith argument for a change in the law to any court, so if there is some good faith argument for doing so, the attorney can push that the issue be reconsidered. Of course, usually the answer from the court will be "no." Or can it just be enforced again without any formal process; so long as nobody sues and gets it killed again by a lower court? Sometimes government officials enforce laws that have been held unconstitutional, either because they aren't aware of the relevant court decisions, or because they think that their facts are distinguishable from those under which the law was held unconstitutional (which sometimes happens on an "as applied" basis rather than on a "facial" basis that applies to all cases), or because they think the judge before them might rule differently despite the precedent. Also, would the answer differ according to country? If so, could you please give me some examples of countries handling this differently. Yes. Many countries with legal systems based upon the legal system of countries of continental Europe like France and Germany and Spain, which are called "civil law" countries have a very different process of handling unconstitutional laws, as does the European Court of Human Rights and the highest court of the European Union. In Germany, for example, questions of the constitutionality of a law may be raised only in the Constitutional Court and not in other courts. This ruling is usually final. And, unlike U.S. courts, the Constitutional Court can rule a law unconstitutional during the legislative process, rather than in connection with an actual case or controversy relating to the law taking effect (in which case the law never gets on the books in the first place). I don't know what happens when the Constitutional Court declares a law unconstitutional. I do know, however, that in the case of the European Court of Human Rights and the highest courts of the E.U. that one of the usual remedies will be an order directed at a member state to amend its statutes to remove the offending law, with sanctions imposed if the member state fails to do so. Obviously, once such a law is repealed in this fashion, it would have to be re-enacted to take effect even if the precedent holding that the law was unconstitutional was undermined.
The differences are subtle in practice today as a result of technologies like the Internet. Enact means (according to Black's Law Dictionary, 5th edition (1979), hard copy): To establish by law; to perform or effect; to decree. The common introductory formula in making statutory laws is, "Be it enacted." Promulgate means (according to the same source): To publish; to announce officially; to make public as important or obligatory. The formal act of announcing a statute or rule of court. In the context of the U.S. legislative process, a law is enacted at the moment when it is signed by the President or Governor after being duly passed by the legislative branch (or when it is adopted by the legislative branch in a veto override). It is promulgated when the public act is published either in physical book form, or electronically, for example, in an online official government website containing the laws that were enacted. These days the time gap between enacting a law and promulgating it is a matter of minutes or hours. Historically, the gap would have been a matter of days or weeks. For example, in Colorado, the legislative session ends in the first few days of the month of May, with all laws passed during the session signed or vetoed by mid-May, but (subject to certain exceptions) laws passed in that session are generally effective on July 1 of the same year. This reflected the assumption of the people who drafted that part of the state constitution that it could typically take up to about four to six weeks to promulgate the laws enacted in the legislative session.
Judicial estoppel prevents a party from arguing two opposite positions in separate proceedings. Is there a similar doctrine that applies to argumentation in the same brief? No. The general rule is that a party is permitted to argue inconsistent positions in the alternative within a brief. When a party does so without expressly saying so, it is assumed that they are arguing in the alternative unless the party clearly indicates otherwise (and is just being illogical). But the law in the context of arbitration is a special case that doesn't align perfectly with the general rule, and makes different distinctions sometimes. Under the substantive law of arbitration clause validity, sometimes a party can be forced to arbitrate even if there is a possibility that the underlying contract is unenforceable, with the arbitrator making that decision. But, a party cannot be forced to arbitrate in every case where the validity of the underlying alleged agreement is in doubt, simply because an agreement, on its face, contains or references an arbitration agreement. Under the Federal Arbitration Act, certain preliminary decisions are vested in the courts even if a written arbitration purports to provide otherwise, if a party choses to raise those issues. A dispute over which of two significantly different competing arbitration agreements applies to an issue between the parties could be such a circumstance. Thus, a term that provides that &quot;delegates threshold questions such as the 'applicability, existence, scope, or validity' of the agreement to the arbitrator,&quot; is partially void as a matter of public policy under the Federal Arbitration Act, although some of its retains its validity. For example, you can't delegate the question of the existence of an arbitration agreement to an arbitrator if that question is disputed, even if the contract says otherwise. In arbitration cases, there is a rather elaborate jurisprudence governing what issues are for a court to decided and what are for an arbitrator to decision when the right of a party to arbitrate, and/or the validity of the underlying contract, are disputed, that makes some very fine distinctions between different kinds of arguments. For example, if a party claims that he never had dealings with a party that presents an unsigned document that is a contract and also asserts that this party is bound to an arbitration agreement, that question can be decided by a court. But, if a party signed an agreement with a plain vanilla arbitration clause but claims it is unenforceable because it was induced by duress or undue influence, the arbitration will usually go forward with the arbitrator deciding the validity of the contract. When a decision is decided by a court, or by an arbitrator, is not easily summarized or manifestly obvious without a review of the relevant case law which is voluminous and intricate. See, e.g., Samson v. NAMA Holdings, LLC, 637 F.3d 915, 923 (9th Cir. 2011); Santich v. VGG Holding Corp., 2019 CO 67 ¶ 6 (June 24, 2019); N.A. Rugby Union, LLC v. U.S. of Am. Rugby Football Union 2019 CO 59, ¶¶ 20-22, 442 P.3d 859, 863-864 (June 17, 2019);;;
Absent newly enacted law in response to the end of the separate sovereigns doctrine, the first case to which jeopardy attaches (generally speaking when a jury is sworn and the first item of evidence is presented to it) would bar subsequent prosecutions, without regard to whether it arose in state or federal court. It would be a race to the court house rule. This is how it works if there are multiple prosecutions within a state, for example, one commenced in a municipal court that is not part of a state court system, and another commenced in a state court of general jurisdiction.