The perfect proffer.

• Author: Lambert, Jason S.
• Position: Appellate Practice

But because counsel failed to properly pre-serve this issue for review, we are compelled to affirm"--one of the most frustrating phrases in the practice of law. You've done everything possible for your client, conducted a professional hearing or put on a tremendous effort at trial, and, yet, somehow left the appellate court wanting for more. One of the ways to keep this from happening is by making an appropriate proffer to preserve an appellate court's ability to review any unfavorable evidentiary rulings. The perfect proffer requires ... well before we get to that, let's start where all good stories should--the beginning.

A proffer is a presentation of excluded evidence. In essence, when a trial court makes a ruling that excludes evidence, the party seeking to present that evidence must make the substance of the excluded evidence known through a proffer, unless the substance of the evidence would be apparent from the context. (1) There are three basic purposes of a proffer: 1) to give the trial court the full picture of the evidence and an opportunity to reconsider its prior evidentiary ruling; (2) 2) "to include the proposed evidence in the record so that the appellate court can determine whether the trial court's ruling was correct"; (3) and 3) to demonstrate that the error is real, not "imaginary or speculative." (4) Without a proffer, it is often impossible for the appellate court to determine the existence and effect of any error made by the trial court in excluding evidence, (5) and the appellate court will not consider arguments as to whether the exclusion was improper. (6)

Stylistically, proffers come in three flavors--perfect, good enough, and those delivered on a wing and a prayer. Within each of these categories, context, clarity, and relevancy all play an important role in determining whether a proffer will permit reversal or just be wasted effort. The burden of making a proffer rests squarely on the shoulders of the party seeking to have the proposed evidence admitted, (7) but the trial court has the discretion to establish the method by which counsel can make a proffer. (8) This article illustrates three proffer styles and points out common pitfalls that derail otherwise good lawyering on appeal.

The Perfect Proffer: Actual Testimony or Documents

The safest way to proffer is to offer the actual testimony sought to be entered into evidence. (9) This entails having the witness answer questions on the record, but outside the presence of the jury, (10) and should give the appellate court a complete perspective on the questions and answers, to permit a proper review. (11) Note, the process is the same for nonjury trials because judges are presumed to disregard inadmissible or proffered evidence. (12)

For example, in Taylor v. State, Dep't of Transportation, 701 So. 2d 610 (Fla. 2d DCA 1997), a property owner claimed severance damages as part of an eminent domain proceeding. (13) The Department of Transportation successfully argued a motion in limine excluding all expert testimony in support of the property owner's severance damages. (14) The property owner ultimately proffered the testimony of four separate experts, revealing the factual support for the severance damages claimed. (15) On appeal, the Second District Court of Appeal reversed and remanded for a trial on the property owner's severance damages, based on the proffered testimony of the four experts. (16) Other courts have similarly reversed trial courts after relying on the duly proffered testimony of witnesses. (17)

During this type of proffer, objections are permitted, but the trial court should permit the question to be answered (18) and counsel should continue to ask questions in order to create a complete record for appellate review. (19)

In the case of documentary evidence, the party seeking to have the document admitted into evidence must ensure the document becomes part of the trial record, even though it is excluded from evidence. Brantley v. Snapper Power Equipment, 665 So. 2d 241 (Fla. 3d DCA 1995), established the best practice for ensuring a document is made part of the record for the purposes of appellate review. (20) The documents should be offered to the court outside the presence of the jury. (21) The documents should be marked and fully described on the record and left with the clerk to become part of the record. (22) Other district courts of appeal have also followed this procedure. (23)

While having documents placed in the record may be a fairly simple procedure, convincing a trial court to put the proceedings on hold to permit the full testimony of several witnesses may be difficult, particularly because the statute permitting proffers does not require actual testimony, (24) and courts have the discretion to determine the method of making a proffer. (25) Under these circumstances, an attorney may have no choice but to try for a good enough proffer.

The Good Enough Proffer: Oral or Written Summary

A good enough proffer is an oral or written summary of the proposed evidence and, if done correctly, is sufficient to preserve the evidentiary exclusion for appellate review. (26) "Counsel may accomplish this by stating with specificity what he or she anticipates will be the witness' testimony." (27) This type of proffer can range from simply indicating the line of questioning to be pursued (28) to describing in detail what the witness' proposed testimony would be. (29) There are three keys to making a good enough proffer truly good enough. First, the attorney must be clear he or she is making a...