Offers of Proof – Preserving Error in Trial

As most of the readers here know, I spent twenty years taking cases to jury trials. I had so many hearings in front of judges I never even kept count. However, I can say that, other than not understanding the Rules of Evidence and the Rules of Civil Procedure, the #1 problem lawyers had was their inability to preserve error for an appeal. The law school I attended stressed the importance of this and so when I started going to the courtroom (immediately after taking the Bar Exam), I worked very hard to preserve error in all my cases and in the cases in which I assisted the Senior Partner.

Unfortunately, too many people who choose to represent themselves don't take the time to learn the rules and don't understand how appeals work. Before I discuss Offers of Proof, let me take a few minutes and explain the Appeal Process.

The Appeals Process
When all or a portion of a judge or jury's ruling goes against what you think should have happened, a litigant can appeal. On appeal from small claims court, the case goes to the next higher trial court for a trial de novo (a new trial).  This isn't really an appeal as we are discussing it today, it is just a chance to redo the trial.

An actual appeal is started by filing a Notice of Appeal, usually within thirty days of the judge signing the judgment, and the case goes to the Court of Appeals. A normal court of appeals will range from three to five judges who look at the written record (transcript) of what was said in the trial court, as well as any evidence that was offered. The parties also submit appellate briefs, explaining in writing why the trial judge or jury erred in something they did and then asking the Court of Appeals to correct the error. In addition to the briefs they read, the judge can also allow or request the parties do oral arguments. This is often done to explain confusing parts of the case and the Appellate judges sometimes request oral argument because something isn't clear in the record.

No witnesses are called to testify at the Court of Appeals and often the parties aren't even there, just the lawyers. The parties are allowed to attend and if a party is representing themselves then they would definitely want to be there and take part in the oral arguments.

At some point after the arguments, the Court of Appeals considers the case to be "Submitted for Consideration" and a ruling will be made somewhere between a week and a couple of years later. The case can be affirmed (meaning the judges agree with that happened in the trial court), reversed and remanded (meaning that the trial court has to do something that the Court of Appeals orders), or reversed and rendered (meaning that the Court of Appeals changed the outcome of the case). There can also be a combination of these decisions.

The important thing about the procedure in the Court of Appeals for the purpose of this article is that the decision they make will be based only on the record of what occurred in the trial court, you cannot submit new or additional evidence.

Preserving Error in the Trial Court

Because the Court of Appeals relies on the record from the lower court, it is important that everything on the record be clear. For instance, if you make an objection and the trial judge does not rule on that objection, then no error was preserved. Since trial judges do not like being reversed, often they will attempt to avoid ruling. One of the more common "tricks" a trial judge will use to avoid ruling is they will instead tell the attorney or party who is asking the questions to "move along". That preserves no error, since the only ruling a judge can make to an objection, for our purposes, is "Sustained" (meaning they agree with the objection) or "Overruled" (meaning they disagree with the objection and the questioning can continue).

Offer of Proof

Objections can be made not only to witness's testimony but also to physical evidence such as documents and an offer of proof can be used to preserve error to either testimony or physical evidence. This is one of the reasons it is so important to understand objections and the proper response to the objections, as is set out in out e-book, The Guerrilla Guide to Trial Objections, which anyone who is representing themselves should purchase early and start studying.

For instance, if you are offering a medical record to prove something in your case and the other side objects and the judge sustains that objection, an Offer of Proof is the only way to get that document into the record for the Court of Appeals to review. The exchange between you, the other lawyer, and the judge would go as follows:

Opposing Counsel: I object to that record Judge due to (lawyer explains his reason for objection).

You: (Explain why you believe it is admissible).

Judge: Sustained

You: Judge, I would then offer Exhibit (identify by number) for purposes of an Offer of Proof.

Judge: Very well.

You then hand the document to the judge or court reporter, whatever the procedure is in that court, and they will add it to any other documents which have been the subject of an Offer of Proof and it becomes a part of the record.

If instead of a document, you are offering testimony the exchange would be something along these lines (I will be using a relevancy objection and response, but obviously you would use the proper objection and the proper response to that particular piece of evidence):

You: Dr. Smith, can you explain what medical procedure was performed next?

Opposing Counsel: Your honor, I object in that the medical procedures which he underwent is not relevant in that they were unrelated to the subject matter of this trial.

You: Judge, it is relevant in that the cost of the testing procedure is one of the damages we are requesting be awarded in the verdict.

Judge: Sustained.

You: Judge, then I would request that the jury be excused for a moment so I can make an offer of proof as to this line of questioning.

JURY LEAVES THE COURTROOM.

You: (Ask your questions and get your answers from the witness). You then state "Judge, I understand from your earlier ruling that each time I asked about other medical procedures which occurred from this point on opposing counsel would object based on relevancy and you would then sustain that objection as you sustained the earlier one, is that correct judge?

Judge: Yes, it is.

You: That concludes my offer of proof then Judge.

Each of those steps was necessary to properly preserve the error committed by the judge. Because you offered the questions and answers as an offer of proof, the Court of Appeals now knows exactly what you were trying to get into evidence. In addition, you made it clear that if you had tried to offer that testimony in the actual trial, then the judge's ruling would have been against you on each question you asked.

While this seems difficult, if you see it done in a trial it is actually easier than it sounds like from a cold reading off of this post. That is one reason that I recommend in all of The Guerrilla Guides to the Law, that anyone who is intending on representing themselves at trial take the time to watch several trials conducted by attorneys. When you have done this as many times as I, or any active trial lawyer, has then it becomes second nature.

Summary

The information on an Offer of Proof and on preserving error can be gleaned from researching case law, from reading the Rules of Civil Procedure or Rules of Court, and from practicing. If you have never been in a trial then I'd suggest picking up a copy of The Guerrilla Guide to Small Claims Court, whether you will actually be in small claims court or another court. The trial process works essentially the same in all courts and knowledge is the key to winning your case.

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