Dr. Frederick Graves makes a neat point in this article about how to get data about your evidence into the record. This is key in order to have all your ducks in a row if you need to appeal for any reason. And because you make your appeal winnable (as you learn in the Jurisdictionary legal self-help course), the judge will weigh that as much as the facts – you see, judges don’t like to be over-ruled...
If you start to offer evidence and, before you can get it before the court, the other side objects and the judge sustains your opponent's objection, you must move the court to allow you to make clear on the record what your evidence was and what it would tend to prove!
This is called making an offer of proof.
Your opponent may do this, too, so read on to learn how it works ... or risk losing needlessly!
Offers of proof may be made at a trial or at any hearing when your opposing party objects to your "evidence" and the judge sustains your opponent's objection.
An offer of proof shows the court on the record:
- What the offered evidence is and
- What the evidence tends to prove
Failure to get your evidence admitted will destroy your chances of winning!
If you don't get your evidence admitted and don't make an offer of proof, you'll have nothing to appeal if you lose!
THIS IS THE JURISDICTIONARY KEY TO WINNING.
Do what my popular step-by-step course teaches to keep the judge aware that you are prepared to win on appeal ... if the judge foolishly chooses to make appeal necessary by ruling against you!
If you don't make an offer of proof, the record will not show what the evidence would have been, and there'll be nothing in the record for the appellate court to review! If the appellate court has no way of knowing what evidence the judge excluded, you cannot win on appeal. Appellate courts will not examine evidence that wasn't made part of the record at the trial level. You can't introduce evidence for the first time on appeal. Like the baseball umpire says, "Them's the rules!"
Therefore, when your attempt to get evidence into the record is prevented by the court's sustaining the other side's objection, you must make an offer of proof.
You must get your evidence in so you can win!
The goal of every "offer of proof" is to show two things on the record: (1) what the evidence is and (2) what the evidence would tend to prove if admitted.
Fully explained in my Jurisdictionary course.
It's not enough just to show what your evidence is. You must also clearly explain on the record what the evidence would tend to prove if admitted. In this way, you show the judge what the appellate court will review ... and if the judge knows that your evidence should be admitted, he may just decide then-and-there to let it come in after all!
Winning lawsuits the Jurisdictionary way is simply a process of setting the stage for a successful appeal by making it crystal clear to the judge that you will win on appeal if he rules against you!
That's why you must always make an offer of proof if a judge sustains your opponent's objection to admission of your evidence.
By doing so, you get your evidence "on the record".
Then, if an appeal must be taken to a higher court on the grounds that you were not allowed to get admissible evidence admitted, you'll have a record to show what the evidence was and what it would have tended to prove!
In jury trials, offers of proof should be made outside the hearing of the jury. In some cases this may be made at the bench. In such cases, the court reporter should come to the bench with the stenograph machine and take down every word spoken by you, your opponent, and the judge.
Don't let anything be said in a way the court reporter cannot get it down! No mumbling. No whispering. Look at the court reporter to make certain every word is going on the record!
If there is any doubt, the jury should be excused. This is especially true when it's your opponent making an offer of proof, because you do not want the jury to hear what your opponent is offering. You do not want the slightest chance the jury might hear what your opponent has! So, in all cases when the judge sustains your objection and your opponent seeks to make an offer of proof, if the case is before a jury, move the court to order the jury removed from the courtroom or request that the offer of proof be made in the judge's chambers (with the court reporter tagging along with a stenograph machine, of course).
You can see how much prejudice would result if an offer of proof were permitted to take place within the hearing of the jury! At that point, the jury would know what the offered evidence is, and no amount of instructions from the judge to "disregard" will make a bit of difference.
If your opponent attempts to make an offer of proof, you must move the court to excuse the jury if there is any chance the jury might hear what's said at the bench!
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Find out for yourself. Lots of complimentary downloads at the Jurisdictionary legal self-help course.
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