Family law cases are subject to the rules of evidence just like any other case or trial would be. Don’t be distracted by what you may perceive as an unsophisticated evidentiary standard set by the court or by your opposing counsel. If your case is appealed and you have not made an offer to prove when one was needed, you have waived your client’s opportunity to present evidence and your client may be unable to make an important argument for reversal or error on appeal.
August 30, 2019 Trial Practices & Techniques
Offer of Proof: Make It or Waive It
By Teresa A. Griffin
When the court sustains your opponent’s objection against your client’s evidence, you have an obligation at that time to consider whether you make an offer of proof to protect the rights of your client on appeal. If you don’t make that offer of proof, the appellate court will be unable to review the record and understand what it was that the trial court and the parties missed out on at trial. If the appellate court lacks that information, not knowing what they cannot know, they may affirm the trial on the basis of harmless error. So be sure to build your foundation and make your record below to avoid that instance.
In order to do this, generally, you will need to present:
- the substance of the evidence,
- an explanation of why it is relevant, and
- its grounds for admissibility.
Once you’ve accomplished these three elements, you can rest assured that, despite the fact that the court ruled adversely against you on this evidentiary matter, you have done what you can to preserve your client’s rights on appeal and avoid that harmless error determination. Best wishes for zealous advocacy in your next hearing or trial.