The First District Appellate Court ruled a self-represented litigant forfeited his arguments on appeal for not adequately preserving the record by making an offer of proof of the excluded evidence and testimony. In re Marriage of Xinos and Marino, 2025 IL App (1st) 232326 ¶ 25. At times lawyers also fail to properly protect the record for appeal.
To preserve an issue for appeal in Illinois, an attorney should first make a timely objection at trial and, if the trial court’s ruling is adverse, raise the same issue again if there is a written post-trial motion, such as a motion to reconsider. This ensures the issue is part of the record for review in the appellate court. The following are reminders of the steps necessary to maintain a record for appeal.
Pre-Trial Motions. Even before trial an attorney can present a motion in limine to limit or bar testimony or evidence from being presented at trial. A motion in limine is a pretrial motion that seeks to exclude inadmissible evidence and prohibit questions concerning such evidence. Cunningham v. Millers General Ins. Co., 227 Ill.App.3d 201, 202 (1992).
The denial of a motion in limine does not preserve an objection to disputed evidence later introduced at trial. The moving party remains obligated to object contemporaneously when the evidence is offered at trial. Absent a proper objection, the right to raise the issue on appeal is waived. Illinois State Toll Highway Authority v. Heritage Standard Bank and Trust, Co., 163 Ill.2d 498, 502 (1994); See Ill. R. Evid. 103(b)(3).
Make Timely Objections During Trial. If the evidence offered by the opposing party is inadmissible or improper, it must be objected to at the time presented. Illinois Rule of Evidence 103(b) states that concerning the admission of evidence, a contemporaneous trial objection or offer of proof must be made to or preserving a claim of error on appeal.
Ask for a Standing Objection. To save a question for review, an objection does not need to be repeated each time similar matters are presented when the court has previously ruled. Nave v. Rainbo Tire Service, 123 Ill.App.3d 585, 589-90 (1984) However, if the testimony is objectionable based on any other reason, then a new objection should be made. For example, if a standing objection is made to lack of foundation, then a new objection should be made regarding any additional objections such as the testimony contains hearsay.
Provide an Offer of Proof. If evidence is excluded, the party must make an offer of proof to demonstrate what the evidence would have shown and why it is relevant. When a motion in limine is granted or critical evidence is not admitted by the trial court, the key to saving the issue for a reviewing court is an adequate offer of proof in the trial court. An offer of proof informs the trial court, opposing counsel, and the reviewing court of the nature of the evidence sought to be introduced. An appellate court determines whether the exclusion was erroneous and harmful. Snowstar Corp. v. A&A Air Conditioning & Refrigeration Service, Inc., 2024 IL App (4th) ¶72.
An adequate offer of proof states with particularity the substance of the witness’ anticipated answer. An offer of proof can be formal or informal. An “informal” offer of proof, where counsel merely summarizes what the proposed evidence or testimony may show, may be sufficient to preserve the error if it is specific enough in nature and if it is not based merely on speculation or conjecture. People v. Wallace, 331 Ill.App.3d 822, 831 (2002). Counsel’s statements must be thorough enough so the trial court understands the nature of the evidence that was to be admitted.
A “formal” offer of proof occurs where the proposed evidence or testimony is offered in a question and answer format with the witness on the stand, to elicit with particularity what the witness would testify to. Snowstar Corp. v. A&A Air Conditioning & Refrigeration Service, Inc., 2024 IL App (4th) ¶72. It should be clearly noted on the record when the offer of proof commenced and when the offer of proof is concluded. As a practical matter, it is a better practice to move forward with the formal offer of proof as reviewing courts have deemed some informal offers of proof lacking in substance to preserve the issue for appeal. It is an error for the trial court to refuse a request to make an offer of proof. In re Marriage of Marcello, 247 Ill.App.3d 304, 313 (1993).
Move to Strike. If the evidence is admitted subject to later connection and the connection is not made, an oral motion to strike the evidence must be voiced. Failure to move to strike is considered a waiver of error in its admission. Balestri v. Highway & City Trans., Inc., 57 Ill.App.3d 669, 674 (1978).
Demand a Ruling on the Objection. Counsel should wait for a ruling on the objection before asking the next question. A party waives an objection where a ruling is not requested after the trial court fails to make one. In re Marriage of Pylawka, 277 Ill.App.3d 728 (1996).
Renew Objections in the Motion to Reconsider. After the trial, if the party received adverse rulings and elects to file a motion to reconsider, include the same issues and objections in the post-trial motion.
Importance of a Complete Record. The record of the trial must be clear and complete, including all objections, offers of proof, and rulings made by the trial court. The appellate record should contain the common law record, report of proceedings or bystander’s report, and exhibits. If the record is inaccurate or incomplete, it can be corrected by stipulation, the trial court or the reviewing court.
Waiver and Forfeiture. Failure to follow these steps to preserve an issue can result in the appellate court finding the issue waived (“an intentional relinquishment of a known right”) or forfeited (“failure to make the timely assertion of the right”). Gallagher v. Lenart, 226 Ill.2d 208, 229 (2007) Therefore, it cannot be reviewed on appeal.
Tips to Preserving the Record for Appeal
- If there’s an evidentiary hearing, hire a court reporter. The costs of an appearance for a court reporter will far outweigh the time-consuming Bystander’s Report which is not as complete.
- Keep track of exhibits, those admitted and those objected to.
- File all appropriate documents: trial stipulations, closing arguments, child support calculations.
- If litigation is not going well, get appellate counsel on board early to preserve issues.
- Remember to make an offer of proof to preserve the issue on appeal.