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Proffers 101: When to Make Your Offer of Proof

May 4, 2015 9:58 AM | Posted by Matthew J. Conigliaro | Print this page

Preservation of Error TipsWhere a party challenges a trial court’s ruling excluding testimony, appellate courts generally require the substance of the excluded evidence to have been set forth on the record or else the challenge will not be properly preserved for review. Can you make your offer of proof (also referred to as a proffer) at the end of the trial, as opposed to the time when the witness would have given the testimony?

The court in Williams v. BNSF Railway Co., 2015 IL App (1st) 121901-B (March 18, 2015), confronted that issue. A plaintiff sued his employer for personal injuries sustained on the day the employer was scheduled to terminate him. The plaintiff testified at trial, but the trial court excluded testimony about the termination. After the trial’s last witness testified, the employer made an offer of proof of facts relating to the termination.

On appeal, the employer challenged the exclusion, but the plaintiff argued that the issue was not preserved because the employer waited until the end of trial to submit the offer of proof. The court rejected that argument, holding that while “the better practice” is to make a contemporaneous offer of proof while the witness is on the stand, there is “no set requirement” for when an offer of proof must be made.

Preservation Issue: Offers of proof should be timely made, preferably contemporaneous with the ruling excluding the evidence.

Tip: Even though the appellant in Williams did not fail to preserve its appellate challenge when it made its offer of proof at the end of the trial, the better practice is to avoid any preservation concern by making the offer at the time the excluded evidence would have been presented. Doing so will avoid any risk that an appellate court will require contemporaneous offers of proof and any risk that, in the commotion of trial, a proffer left to the end will be overlooked.

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