Offer of proof

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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What Is An Offer Of Proof In An Illinois Divorce Hearing Or Trial?

Offer of proof

When you cannot come to an agreement in your Illinois divorce, you must go to the divorce judge to decide the matter.

The divorce judge listens to each party’s presented evidence, admits exhibits into evidence and then applies Illinois law to that evidence in formulating their ruling.

Without evidence presented to the court and admitted by the court, an Illinois divorce judge is unlikely to rule in your favor.

Therefore, your opponent will do everything they can to object to your evidence.

“[W]hen an objection is made, specific grounds must be stated and other grounds not stated are waived on review” Jones v. Rallos, 890 NE 2d 1190 – Ill: Appellate Court, 1st Dist., 3rd Div. 2008

There are a variety of objections that can be made based on the Illinois Rules of Evidence. A non-exhaustive list of objections are below:

“The admissibility of [evidence] is addressed to the sound discretion of the trial court, and a decision to admit such evidence will not be disturbed unless its exercise is clearly abused.” Slavin v. Saltzman, 643 NE 2d 1383 – Ill: Appellate Court, 2nd Dist. 1994

If the objection is granted, the proposed evidence will not be considered and there will be no findings based on that evidence.

At this point, you are not completely out of luck. You can still preserve your evidence for possible appeal based on an improper ruling granting the objection. The only way to preserve this evidence for appeal is via an “offer of proof.”

“In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” Ill. R. Evid. 103

“Generally, when a trial court refuses evidence, no appealable issues remain unless a formal offer of proof is made.  The purpose of an offer of proof is to inform the trial court, opposing counsel, and a reviewing court of the nature and substance of the evidence sought to be introduced. An adequate offer of proof is the key to preserving a trial court’s error in excluding evidence.” K4 Enterprises, Inc. v. Grater, Inc., 914 NE 2d 617 – Ill: Appellate Court, 1st Dist., 3rd Div. 2009 (citations omitted)

How To Make An Offer Of Proof In An Illinois Divorce Hearing Or Trial

Normally an offer of proof is simply acknowledging that the judge has ruled and then politely requesting to make an offer of proof where the witness continues to testify regarding the objected subject matter or the objectionable exhibit is admitted as an offer of proof but not as admitted evidence.

“I understand that you have ruled this evidence inadmissible, judge. At this time I’d like to make an offer of proof as to that evidence.”

Meanwhile, the court reporter records it all for possible appeal.

“The traditional way of making an offer of proof is the “formal” offer, in which counsel offers the proposed evidence or testimony by placing a witness on the stand, outside the jury’s presence, and asking him questions to elicit with particularity what the witness would testify to if permitted to do so.” IN RE MARRIAGE OF MILLER, 834 NE 2d 578 – Ill: Appellate Court, 4th Dist. 2005

An Illinois divorce judge is not going to be thrilled with listening to testimony they have already deemed inappropriate. Therefore, the Illinois divorce judge may request a mere summary in lieu of a formal offer of proof. Any summary offer of proof is going to have to meet a sufficient level of specificity to preserve the issue for appeal.

“In lieu of a formal offer of proof, counsel may ask the trial court for permission to make representations regarding the proffered testimony. If counsel so requests, the court may–within its discretion–allow counsel to make such an informal offer of proof.

A trial court may deem an informal offer of proof sufficient if counsel informs the court, with particularity, (1) what the offered evidence is or what the expected testimony will be, (2) by whom it will be presented, and (3) its purpose. However, an informal offer is inadequate if counsel (1) “merely summarizes the witness’ testimony in a conclusory manner” or (2) offers unsupported speculation as to what the witness would. In deciding whether to permit an informal offer of proof, the court should ask itself the following questions: (1) Are counsel’s representations accurate and complete? and (2) Would a better record be made by requiring counsel to make a formal offer of proof, even though doing so might be inconvenient and require more time?” IN RE MARRIAGE OF MILLER, 834 NE 2d 578 – Ill: Appellate Court, 4th Dist. 2005

Offers of proof have to be sufficiently specific that an appeals court can tell from the record if the evidence should have been admissible. This level of particularity depends on the context of the case.

“Where it is not clear what a witness would testify to, or what the basis for his testimony is, the offer of proof must be considerably detailed and specific, so that a reviewing court can thereby review whether the exclusion was proper. However, an offer of proof is not required where it is apparent that the trial court clearly understood the nature and character of the evidence sought to be introduced.” Torres v. Midwest Development Co., 889 NE 2d 654 – Ill: Appellate Court, 1st Dist., 1st Div. 2008

The court can chime in for the record on what they believed the unacceptable evidence showed.

“The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.” Rule 103 – Rulings on Evidence, Ill. R. Evid. 103

What Happens If You Don’t Make An Offer Of Proof After An Objection In An Illinois Divorce Hearing Or Trial?

No offer of proof means no appealable issue. Period.

“A party cannot obtain reversal based on the failure to admit evidence without showing what the evidence would be, in order to allow a court of review to assess the prejudice inuring from the exclusion. The failure to make an offer of proof precludes defendant from raising this allegation of error. We need not discuss the speculative nature of the proposed testimony.” Blackburn v. Johnson, 543 NE 2d 583 – Ill: Appellate Court, 4th Dist. 1989

Failure to ask for an offer of proof means you are NOT appealing. You have already given up.

Why Making An Offer Of Proof Is Important In An Illinois Divorce Hearing Or Trial

Lawyers like to think that judges consider well-reasoned oral and written arguments based on the argument’s merits alone.

Most actually-considered communication is done via signaling. That’s how the human brain processes information…by interpreting signals.

Where you went to law school is a signal. Whether your voice sounds confident is a signal. If you’re well-dressed is a signal. These things matter…and you know they do.

Demanding an offer of proof is the most crystal-clear signal possible. It signals to the judge, “that objection might be wrong and this lawyer might appeal it.”

Furthermore, an offer of proof allows the lawyer to immediately re-take control of the courtroom after being shut down by judge.

Finally, insisting on an offer of proof shows that you know the rules of trial. Did you even know what an offer of proof was before reading this article? It doesn’t matter because if you can show that you know one esoteric rule, it signals that you know all the rules of trial…and your arguments should be taken that much more seriously.

If you want to be free of worry about objections in your Illinois divorce hearing or trial, contact my Illinois family law firm to speak with an experienced Illinois divorce attorney.