Appellate Insights

An appellate argument that the trial court erred in admitting or excluding evidence requires a solid foundation in the trial court record.

• Your evidence.  If the court is inclined to exclude your evidence, make an offer of proof that (1) describes the evidence in detail, and (2) explains why the evidence supports your position and is necessary.

• The other side’s evidence.  If the other side’s evidence is inadmissible, object promptly on the applicable grounds.  If the court defers ruling or overrules the objection without prejudice, renew it at the appropriate time.

• Get it in writing.  Make sure your objection or offer of proof, and the ruling on it, are on the record.  If they occur during an unreported conference, summarize them once the court reporter is back.

► The practical message:  When planning for trial, designate someone on your team to make sure that evidence admissibility issues are timely and clearly articulated on the record.