Offers of Proof – A Lesson for Pro Se Litigants

Although any person is entitled to represent themselves in their lawsuit, unless you are going to put the time and effort into really learning the Rules of Civil Procedure (aka the Rules of Court) and the Rules of Evidence you’re really just wasting everyone’s time. The only exception to this is if you are lucky enough to go up against someone who also lacks the motivation to do things correctly and then, maybe, you’ll luck into a win.

Preparing for Appeal Starts During Trial

One aspect of civil procedure that is often overlooked is preparing a case for appeal. When a good trial lawyer is handling their case they are looking not only at getting the win at trial but also at preparing the case for appeal if they lose. Every lawyer who tells the truth will tell you they have won some cases they should have lost, and lost some cases they should have won so doing your best at trial but preparing for appeal is the smart way to go.

When a court of appeals reviews a case they can only look at evidence which was admitted or which was rejected but “preserved for appeal”. One of the ways to preserve matters for appeal is through an offer of proof.

Offer of Proof

Offers of proof are covered in several of the Guerrilla Guides to the Law, but essentially they are based on Rule 103 of the Rules of Evidence. Most state’s rules are based on the federal rules so we’ll insert that one here for you to review in its entirety:

Rule 103. Rulings on Evidence

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.

(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

Reviewing Rule 103 of the Rules of Evidence

Essentially, what this rule states is that if the judge isn’t going to admit something into evidence you can offer it as an “offer of proof” purely for appellate purposes so the court of appeals can see the materials and then decide whether the judge was correct in their ruling as well as whether the evidence would have made a difference in the ultimate decision on the case.

What is particularly critical here is the timing. An offer of proof does not have to be made at the time the evidence should have entered the trial, simply offering it and having the judge overrule its admission is sufficient, but it must be made before the jury is “charged”. Most lawyers make it a habit of making the offer of proof at the very next break so that they are sure not to forget it in the flurry of things which happen when a case is wrapping up and we’d suggest you do the same.

The procedure for an offer of proof is simple and is set out in an excellent article by Judge Bonnie Sudderth of the 352nd District Court of Tarrant County, Texas, at this link. The article is directed at attorneys, but serves equally well for pro se litigants.

” The mechanics of making an offer of proof are straight-forward.  The proponent simply needs to demonstrate the nature of the evidence with enough specificity so that the appellate court can determine its admissibility.  This can occur in one of two ways, both of which occur outside the presence of the jury. 

The easiest way is for the attorney to summarize the substance of the testimony.  Most attorneys and judges prefer this method because of its simplicity and expediency.  The second method is to call the witness to the stand and elicit the testimony in question-and-answer form.  While this approach is less convenient and more tedious, a question-and-answer format is mandatory if the other side demands it. 

For tangible evidence, simply mark the evidence as an exhibit and request its inclusion in the record on appeal.  (The same thing can be done for deposition testimony which has been excluded.)

Always keep in mind that an offer of proof is just that – an offer.  Therefore, at the conclusion of the recitation or presentation of the evidence, the proponent of the evidence should re-urge its admission.  As with any other offer of evidence, a ruling must be secured in order to preserve error.  In other words, after giving the court a second chance to consider the evidence, the attorney should secure a final ruling on admissibility.”

While the offer of proof is not the only section of the rules you need to know, it is certainly one of the most important and using this tool will enable you to receive a full review of your trial and can give you a second shot. 

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