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Bar News - August 14, 2009

Offers of Proof: A View from the Transcript


Judges, lawyers, and parties like offers of proof because they avoid testimony of witnesses, and shorten trials and hearings. A focused offer of proof will help both at trial and on appeal. But no matter how effective in the trial court, an offer of proof done without an eye toward the transcript may obscure on appeal what should have been plain.1 It may leave unclear where a particular factual finding has its basis in the record, or all too clear that competing versions exist and the transcript is like a religious text where virtually anything can be creatively justified.

When offering proof, it is important to tell the court up front what is contested and what is not, what you want and what you don’t. If you’ve filed a proposed order, use it as a guide. Summarize your requests, in the order they appear in your proposal. Then tell the court the factsthat support your requests, one request at a time. Organize your offer of proof by subject matter, chronology, or some other cogent way, and avoid rambling. Don’t forget to recite the bad facts along with the good.

Offers of proof have a beginning and an end. Be sure to delineate them. Some lawyers just begin reciting, and others neglect to say when their offer ends. The most difficult example is when there is an extended back-and-forth among lawyers and the court, making it impossible to know whether the discussion is part of the offer or something else.

Not identifying an offer of proof as such makes the transcript confusing. It gives no clear lines between offers of proof on the one hand, and trial management discussions, legal argument, friendly banter, or closing summation on the other. It thus creates ambiguity regarding what facts the record contains. Particularly in exercise-of-discretion appeals, which things the lawyer said that constitute a “fact” can be very important. When unlabeled, an appellate opponent has the opportunity to claim the fact is not in the record.

Thus, at the beginning of your offer of proof, say: “The witness, if she testified, would say...” At the end of your offer, say: “That’s what the witness would have said had she testified today.” When your offer of proof is interrupted by other matters, say: “I am now resuming my offer of proof.”

Offers of proof must be clearly tethered to a specific witness, and that witness must be present. You must always know the source of every fact you offer and have proof at the ready, including affidavits and witnesses seated in the courtroom. At the discretion of the court, any party or the court may demand testimony in lieu of or to support the offer. Superior Court rules require an offer of proof be made “only if that witness is in the courtroom at the time of the offer.”2 Thus, at the beginning of your offer of proof, state that the witness is present, and then consistently sprinkle into your offer the witness’s name or title, and that your offer is what he would say if he testified. This accomplishes several things: it maintains focus on the material facts, it adds credibility to the lawyer’s presentation by tying the offer to the witness being paraphrased, and it keeps the appellate record free from confusion.

When making offers of proof, especially in cases where there are multiple players, there is a tendency to either not name them, or use names that are easily mistaken. My guess is that gestures or voice inflections in the trial court made identification a non-issue, but because the transcript is barren of them, things are muddy on appeal. Thus, it is a good idea to give some thought to, and use, consistent naming conventions throughout your presentation. A good way to keep the parties straight is by using titles: e.g., “husband,” “mother,” “town,” “employer.” In some municipal and insurance cases, important parties are sometimes technically interveners. Either use their name or call them “developer” or “carrier.” But avoid titles when they are themselves easy to confuse: say borrower and lender rather than mortgagor and mortgagee.

Avoid referring to the parties by their position in the litigation: e.g., “plaintiff,” “petitioner,” “appellee.” I find that lawyers often inadvertently mix up these words. Naturally you have many clients, on both sides of the “v.” and confusing the terms cannot be helped. It is similarly easy to mix up “Mr.” with “Ms.” or “Mrs.” The word “defendant” works fine in criminal cases where no one is going to confuse him with the State. It may feel inappropriately informal to use first names, but often it is a good way to keep the appellate record free from identity confusion. Be creative when the parties have similar names.3

At all costs, avoid pronouns. When there is a crowd involved – wife, husband, paramour, appraiser, children, GAL, several lawyers and a judge – use of “he” and “she” is terribly confusing. If you have a strategic reason to label parties by a particular name, obviously do that: I once represented an abutter in a variance appeal involving a too-tall building where the developer’s name happened to be “Vertical Building & Development,” and I could not help using its name whenever possible.

Offers of proof are important devices, likely to be increasingly used as our judicial system gets ever more busy. Making them with an eye toward the appellate record will not only help if an appeal is taken, but may also help focus your presentation and perhaps avoid an appeal.

[In domestic relations cases, or other instances in which the formal rules of evidence do not apply, or may be relaxed in the court’s discretion, if evidence could have been accepted by the court without the necessity of testimony under oath from a witness for its introduction, that evidence may also be received by offer of proof without the presence of the witness in court. By making an offer of proof, an attorney represents to the court that he or she has examined the witness or document which is the subject of the offer and reasonably believes, taking into account all that he or she knows about the case, that the evidence is not false, is admissible through a witness who could testify under oath to establish the point for which it is offered, and is not offered for a frivolous purpose. In an ex parte proceeding, the attorney also represents that any offer of proof has been accompanied by a sworn statement of all material facts known to the attorney whichwill enable the court to make an informed decision of the issues presented.

SUPER.CT. ADMIN. ORD. NO. 15 (Oct. 25, 1997)]

1See e.g., In re Marriage of Miller, 834 N.E.2d 578 (Ill.App. 2005) (admonishing litigant for incomplete offer of proof), judgment vacated, Miller v. Miller, 838 N.E.2d 4, 297 (Ill. 2005).

2Superior Court Administrative Order Number 15 provides:

When a justice or master exercises discretion to receive evidence by offers of proof in a civil, equity, or domestic relations case, the following procedure shall be employed:
1) An offer of proof as to the testimony of a witness shall be received only if that witness is in the courtroom atthe time of the offer;

2) Subject to the usual authority of the court, any witness whose testimony is presented by offer of proof may be cross-examined by the opposing party;

3) Where credibility is challenged, or for any purpose in the court’s discretion, the court may question the witness or require the witness’ proof be presented from the witness stand.

Judges or masters taking evidence by offer of proof should inform the parties of this procedure and that by making an offer they represent to the court there is present a witness who would testify under oath in accordance with the offer.

3See e.g., In re First Student, Inc., 153 N.H. 682 (2006) (parties named “First Student, Inc.” and “First Student Services LLC”); Portsmouth Brewing Co. v. Portsmouth Brewing & Bottling Co. 67 N.H. 433 (1893).

Joshua Gordon practices appellate law in Concord, New Hampshire, before both federal and state courts. See He is indebted to the Bar Association section listservs for members’ input in developing these thoughts.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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