You appear for your final pretrial conference and after a short discussion or perhaps with no hearing, the Court grants your opponent’s motion in limine and excludes evidence or testimony essential to your client’s case.  Now what do you do? Well, your starting point for an answer to this dilemma is Rule 103 of the Federal Rules of Evidence.  Rule 103(a) deals with rulings on evidence and how to preserve a claim of error.   A party may claim error in a ruling to exclude evidence only if “the error affects a substantial right of the party” and “a party informs the court of [the evidence’s] substance by an offer of proof, unless the substance was apparent from the context.”  Because a ruling on a motion in limine is not considered a final ruling from which you can take an appeal, you need to make an offer of proof during the trial outside the presence of the jury to get a definitive ruling. 

Under Rule 103 (c), the court may direct that an offer of proof be made in question-and-answer form or allow a party to summarize what the evidence would be if the witness and exhibits were admitted.  Although it is not required, it is useful to reduce your offer to prove to writing.  Your offer to prove should address why the evidence is admissible and cite legal authority for your position. If necessary you should attach exhibits and a summary of the expected testimony of the witness.  If allowed by the Court, you should take advantage of the opportunity to present “live” testimony outside the presence of the jury in support of your position.  While the Court can control the timing and manner in which you make your offer to prove, it cannot block your right to make an offer to prove.   

By making your offer to prove in writing, you are sure to include all essential information, arguments and supporting authority. You also signal to the Court that you are serious about your position.  The offer to prove allows the Court one last chance to revisit the issue and reconsider its decision.  On more than one occasion, I have had a Court reverse its decision when presented with the offer to prove.  So next time you lose an evidentiary battle, don’t be afraid to make your offer to prove… The court’s ruling might just surprise you.