The Supreme Court has promulgated a new Rule 4:25-8 that will govern the scheduling, briefing and dispositions for motions in limine, which it defines as a pre-trial motion relating to the admissibility of evidence or other matters that would govern the conduct of the trial. There is, however, one major exception to this definition. A motion that would have a dispositive effect on the opponent's case, including specifically a motion to bar expert testimony that is required as a matter of law to satisfy a party's burden of proof, is outside the scope of the rule. The exclusion means that Daubert and other similar evidentiary motions that would have a fatal impact on the opponent's case should be made as a summary judgment motion under the schedule provided in R. 4:46-1, which requires that they be returnable at least 30 days before trial except for good cause shown. We have previously editorialized that requiring such dipositive evidentiary motions to be heard under the summary judgment rule instead of on the eve of trial is the better practice. While it would have been preferable for the new rule to explicitly so state, the implication is clear, and counsel should be vigilant to make dispositive evidentiary motions in a timely manner. Parties also should be aware that the new state rule differs from the practice in our federal district court, where Daubert motions are scheduled in consultation with the Magistrate Judge as early as practicable.

|