Wednesday, September 29, 2010
Empty Formalism Is A Vacuum To Be Abhorred: Eighth Circuit Notes That Parties Don't Need To Renew Objections To Definitive In Limine Rulings
A party files a motion in limine seeking to have certain evidence deemed admissible at trial. The court makes a formal ruling deeming the evidence inadmissible at trial. The party objects to this ruling and makes an offer of proof. At trial, does the party need to renew its objection and again make an offer of proof? As the Eighth Circuit artfully put it in its recent opinion in Shelton v. Kennedy Funding, Inc., 2010 WL 3719065 (8th Cir. 2010), the answer used to be "yes" but now it is "no."
In Shelton, Virgil Shelton brought a breach of contract and fraud action against Kennedy Funding, Inc. (KFI) arising out of the sale of a cemetery in Arkansas. Before trial, KFI brought a motion in limine seeking a ruling that Michael Leighton be allowed to testify on its behalf. Leighton is a partner in a law firm, and his associate, Joseph Barbiere, entered an appearance for KFI, but withdrew his representation on the last business day before trial. KFI recognized that an attorney generally may not testify on behalf of a party in Arkansas when a member of his firm is representing that party. KFI argued, however, that this general rule was inapplicable because (1) Barbiere had a very limited role in the litigation and (2) the district court granted Barbiere leave to withdraw before trial commenced.
The trial court disagreed and issued a "definitive" ruling that Leighton could not testify on KFI's behalf. KFI objected to this ruling and made an offer of proof regarding Leighton's proposed testimony, but it did not renew this objection (and make another offer of proof) at trial.
After the jury found for Shelton, KFI appealed, claiming that the court's ruling was improper, and the Eighth Circuit noted that if this case were heard before 200, KFI would not have preserved the issue for appellate review. This was because, a party needed to renew its objection (and make another offer of proof) if the trial judge ruled against it during a pre-trial motion in limine "before the 2000 amendments to Fed.R.Evid. 103. See, e.g., Dupre v. Fru-Con Eng'g Inc., 112 F.3d 329, 336-37 (8th Cir.1997) (holding that, notwithstanding obtaining a formal ruling on a motion in limine, a party's failure to make an offer of proof at trial waived any right to appellate review)."
Federal Rule of Evidence 103(a), however, was amended in 2000, and it now provides that
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. - In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) 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.
Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
And, as the Advisory Committee Note to the 2000 amendment makes clear,
The amendment provides that a claim of error with respect to a definitive ruling is preserved for review when the party has otherwise satisfied the objection or offer of proof requirements of Rule 103(a). When the ruling is definitive, a renewed objection or offer of proof at the time the evidence is to be offered is more a formalism than a necessity.
The Eighth Circuit noted this language and agreed with it, finding that "[e]mpty formalism is a vacuum to abhorred." The court thus found that KFI preserved the issue for appellate review but found that even if the trial court's ruling was erroneous, it was harmless.