So, can someone leave all or a part of their estate to these beloved animals?

Unfortunately, no. I know of no state that will allow someone to leave their money to an animal.

Any attempt to do so will likely cause a judge to rule that the bequest directly to a pet is the same as if that part (or all) of the estate was not left to any one.

However, there is still a way to make sure pets are provided with the care and any necessities of life, for as long a they live.

This is through a legal document known as a trust.

A trust is a legal entity which can be done ahead of time, usually when the pet owner does or updates their will. Trust documents should be drafted by an attorney since leaving all or a portion of the estate to care for a beloved pet can cause a judge to carefully scrutinize the papers

In the trust documents, the lawyer can set out specifics as to what someone wishes for their pets as well as the money to care for them.

Another consideration the lawyer will explain is what to do with any remaining funds after the pet passes away. These “leftovers” (also known as the remainder) can go to a person or a charity, whichever is the preference set forth in the documents.

Of course, these documents may be amended at any time prior to death. For example, if the pet dies, and another animal becomes a companion, the trust documents can be amended to take care of any desired changes.

In conclusion, while a person can’t usually leave the estate to a pet, by using a combination of  well drafted documents, the result will still achieve the desired result, providing funds to care for the pet.

When reading various articles on the internet and when reviewing legal documents prepared and filed by unrepresented parties to lawsuits you will see the term “Pro Se” and “Pro Per”. The terms are taken from the Latin phrase “In Propia Persona”, which essentially means “for one’s own person”.

Throughout this article I will use the term “Pro Se Litigant” (upper and lower case). This is simply a shorthand way of describing someone who is engaged in a dispute with someone else, usually in court, and in which they have chosen to represent themselves. Even though, technically, no one is a litigant until a case has been filed in court I often use the term for all disputes which are or could end up in court.

Internet User Beware

As we have repeatedly stated in our books, articles, and blog posts, it is EXTREMELY important that anyone considering representing themselves be wary of using terms or taking legal positions espoused by people on the internet, especially those who didn’t graduate from law school and have never practiced law. For lack of a better term we’ll call those people “the Citizens Brigade”.

Unfortunately, members of the Citizens Brigade are firmly convinced the law is a racket and since they have read the Constitution (maybe) only they understand it better than law professors and lawyers but that also qualifies them to read, explain, and apply all types of law to all sets of facts.

I’m not sure where they originated, but I have seen their arguments cost the proponents hundreds of thousands of dollars when they had a winnable case if they had understood the actual law. Unfortunately, I have also been witness to a case where a man chose to represent himself in a criminal case where an excellent plea bargain had been offered but, instead, he chose to use the wrong arguments and ended up being sentenced to prison (for failing to file one piece of paper which would have allowed probation), and testified to things which got his wife charged with conspiracy as well. 

The members of the Citizens Brigade often make comments or even post entries on blogs explaining the importance of the distinction between Pro Se and Pro Per, as well as other topics, but they are invariably wrong and using their arguments or reasoning never works out better than using information obtained from websites or other sources written or operated by attorneys or former attorneys, as well as people with a traditional legal education and actual courtroom experience.

Which is Proper – Pro Se vs. Pro Per

Some states have a general preference for which term is used. For instance, in Louisiana the self represented litigants in a case usually refer to themselves as appearing Pro Per, whereas right next door in Texas the preferred term is Pro Se.

Generally, since the terms mean the same then they are interchangeable. No judge is likely to strike a person’s pleadings or dismiss their case because they refer to themselves as Pro Se when the judge usually hears the term Pro Per or vice versa.

The litigant is often best served by either searching the internet or the legal search engines (for more information on legal research see our book The Guerrilla Guide to Legal Research – Finding the Law For Non Lawyers) to see what term is most often used. The person can also go to the clerk of the court for the court which their case will be or is already in and asking the clerk if they can look at a few files where a party is representing themselves 

Most often, the only place the designation has to be done is under the signature line on the documents filed in the case.

Effect of Being Pro Per or Pro Se 

One thing the person choosing to represent themselves needs to be completely aware of is that they are held to the same legal standards as an attorney. Thus, if you are given a deadline you must meet it. If the law, the Rules of Civil Procedure, a docket control order, or local rules provide deadlines for different filings a pro se litigant is expected to know or find them and follow them just the same as the attorneys in the case. Required motions or filings must be done and deficient pleadings will be struck, just as they would be if an attorney submitted them incorrectly. While some judges are inclined to give a little leeway to people representing themselves, this kindness cannot and should not be relied on by anyone.

Which to Use

It really doesn’t matter unless the judge has told you they have a preference. Since they mean the same thing, both terms get the meaning across. If the judge states they want you to use one term or the other then by all means that is the one to use. Otherwise, use the one you prefer but be consistent and don’t use one sometimes and then the other. This is the mark of someone who is not paying attention to details and, if you are facing a lawyer on the other side of the dispute, is “blood in the water”.

Other Resources for Specific Legal Information

Most states have their own websites and publications dealing with the legal and court system in that state. Their publications tend to be very basic and lack any specific legal information. The internet has a lot of sources but, unfortunately, many if not most of them provide incorrect data or information which most people don’t have the legal background to understand. These are the reasons we first began publishing the Guerrilla Guides to the Law. Each of these focus on one specific area of the law and provide not only information but also the reasoning behind any ideas the guides set forth. If you understand the “Why” it makes it much easier to apply that concept to any other set of facts. 

If a reader of our website has any questions as to which of our books would apply to their situation, they are welcome to drop us an email through our Contact Us page and we’ll be glad to assist them in determining which book applies. We also welcome any suggestions as to the topics our customers would like to see for our next books.

Summary

Both Pro Se and Pro Per are designations which a party to a lawsuit uses to easily show they are not represented by an attorney but are choosing instead to represent themselves. While the terms are interchangeable, choose one and use it throughout the proceedings and if a judge indicates a preference, then use that term.

Different Types of Social Security Disability

There are two types of disability which are handled by the Social Security Administration. Each of these is dramatically different but the “claimant” (the person applying for benefits) must be familiar with the system and the terminology to be successful in their claims.

The first type of disability is SSDI, or SSD, which is the acronym for Social Security Disability Insurance. These benefits are available to workers who have paid Social Security taxes as an employee and/or as self employed over a sufficiently long and specific time period. The benefit amount is based on the worker’s earnings record for their work history in a specific timeframe and are available regardless of the household’s income or assets. 

The second type is Supplemental Security Income (SSI) which is essentially a federal welfare program for the elderly, blind, and disabled.  Unlike SSDI, these benefits are paid out of general revenues, not the Social Security trust fund. The benefit amount for SSI is set by Congress, and states may add a supplemental amount but are not required to do so. Unlike SSDI, SSI is “needs-based” and therefore to collect benefits a person must meet the income and assets requirements of the program. SSI can be collected regardless of work history and can be collected for children if their parents meet the asset and income requirements.

It is much harder to find an attorney to assist with filing for SSI, than it is for SSDI, primarily because fewer people qualify, the past benefits are much lower, and the amount is not paid directly to the attorney by the Social Security Administration. This lack of a direct payment means that occasionally an attorney gets “stiffed” for their fee when the client receives the check for SSI back payments and fails to pay the attorney.

The Disability Claim Process

All claims for disability start with filing the initial Disability Benefit Application either online or with the local Social Security Administration office. What most people do not realize is almost all claims are denied at this stage.

Lawyer X, the author of our The Guerrilla Guides to the Law and our main contributing writer here at the LessonsInLaw.com website, points out in our newest book The Guerrilla Guide to Filing For Social Security Disability that of all of the disability benefits cases he was involved in, only two were approved at the initial phase. In one of these, the claim was filed by the family of a man in a coma. In the second, the claimant was referred by the local mental health clinic and in the 15 minute interview in Lawyer X’s office, the claimant spoke only to the empty chair next to her and would then listen as she believed the imaginary person in the empty chair relayed her message to the lawyer.

After the initial claim is denied by the local office the next step is to file for a Reconsideration, which is also usually denied. At that point the decision is then appealed to the SSA’s Office of Hearings Operations and a request is made to have an Administrative Law Judge (ALJ) hear he case. Since the ALJs only hear cases which have been denied this hearing is, in effect, a completely new process using the same forms which were submitted earlier as well as some additional ones which will be used to update records, etc. 

Disadvantages of Using an Attorney

The only real disadvantage in using an attorney to assist with filing for Social Security Disability benefits is the cost. As a general rule, attorneys are limited by the Social Security Administration (SSA)  to charging 25% of the past benefits, plus their costs, as a fee. The SSA will occasionally allow a deviation upwards from this figure and the attorney must provide legitimate reasons for the requested increase and then the SSA must approve the higher fee. The reasons normally given involve a greater than usual amount of time involved and the hours should be documented both as to amount and the reason.

The only other disadvantage is that the case proceeds on the attorney and the SSA’s timetable when an attorney is involved. However, this is not actually an issue in very many cases because an attorney only gets paid when the client is paid and thus they are anxious to get the matter resolved as well.

Representing Yourself

Many people choose to represent themselves because they do not want to pay an attorney the 25% fee. However, the Social Security Disability process is very difficult and if a person is not willing to do the work and/or they lack the knowledge to do it correctly, then the claim is almost certain to be denied.

There are a variety of resources available to assist a person who chooses to represent themselves. The Social Security Administration itself has sections on its website explaining the different aspects of a disability claim. However, even the sections designed for the general public are not very “user friendly” and often use language which is hard to understand without any explanation. 

All of the forms a claimant needs are online now although it can be difficult to know which claims to use and then, difficult to find the right form and/or to fill them out correctly.

The process itself is also very difficult to understand with different agencies and entities involved in the process and applying for benefits often means acquiring medical records from the claimant’s own physicians and medical providers as well as seeing various experts hired by the SSA. Unfortunately, many of the experts used by the Social Security Administration are quick to issue an opinion that the person does not meet the various demands required to be considered disabled. 

This adversarial relationship between the Social Security Administration, the experts and judges it employees, and the disabled person creates a system where a person choosing to represent themselves needs to be informed as to all aspects of their case and what may be required.

The Guerrilla Guide to Filing for Social Security Disability Without a Lawyer

The difficulty of the process, the lack of proper educational materials by the SSA, and the way the system seems to be set up to make it easier for claims to be denied is the reason LessonsInLaw.com chose to have Lawyer X write the latest Guerrilla Guide to the Law. This book, The Guerrilla Guide to Filing For Social Security Disability, took over two years to write and includes the latest information on the Social Security Disability process. Just as we were preparing to go to press in February, 2019, we received notice some of the information had changed and updated the book, just as we will continue to do from this point forward.

The Guerrilla Guide to Filing For Social Security Disability was designed to reduce the amount of “legalese” in the process and explain the various terms used by the SSA. In addition, when a specific term or language must be used because the SSA requires it, Lawyer X explains the terms in a way which is easy to understand. 

Further, many aspects of being successful in filing a disability claim are not actually written down anywhere on the Social Security website or, for that matter, anywhere else EXCEPT our book. These are tips and strategies developed over the time period during which Lawyer X represented people in Social Security cases. These “insider tactics” can mean the difference between winning your case and having your claim approved or being denied and potentially having to start the process all over.

Summary

It is clear the Social Security Administration does not require a lawyer to assist you in the process of applying for either form of disability benefits. Neither will the people involved make it harder on you, which can happen in a regular court case, if you decide to proceed on your own.

By using The Guerrilla Guide to Filing For Social Security Disability a claimant is able to represent themselves effectively and greatly increase their chances of having their claim for disability benefits approved.

So if there is a lawsuit, does there have to be a trial or can the case still be resolved?

The answer to this is simple, yes. Through a variety of methods called “Alternative Dispute Resolution” (ADR) a case can be settled at any time up through and even after a trial.

Informal Methods to Resolve a Lawsuit

Obviously, the easiest way to resolve a case is for the parties to simply get together and work out their differences. If a lawsuit has already been filed it would be a good idea for the parties to write up the terms of any agreement and file it with the court. A Motion to Dismiss should be filed once the agreement has been reached and filed.

The next informal way to settle a case will only work in certain courts. A recent trend is for courts to have magistrates or others trained in dispute resolution to meet with both parties in a very informal setting and attempt to resolve the case. Often it’s just a matter of the neutral magistrate asking each party to state their position and then explain what attempts were made to avoid a lawsuit. As with all of the methods discussed in this article, with one exception, the magistrate cannot order a case settled.

Getting the Court Involved to Settle

If one of the parties believes a case can be resolved but the other party refuses to discuss it then the willing party can file a Motion to Refer Case to Mediation. Almost all judges will order a case to mediate if a request is made by a party and many judges automatically refer all cases anyway. The main drawback to mediation is there is usually a fee required to be paid to the mediator by each party. Fees are usually based on the amount of time the mediation will take, with the mediators usually working in half day increments. After the mediation the mediator does not tell the judge what happened, who would not settle, or why there was not a settlement. Instead, they simply file a letter or report with the judge stating the case and whether the case settled or not.

The advantages to the mediation process are:

1. mediation has a success rate of 86% overall,
2. a mediated case resolves faster than having a trial,
3. there is no appeal from a settlement and thus, no additional costs,
4. the stress level is much lower than with a trial,
5. it is not always necessary to learn all the rules, law, and statutes involved,

Disadvantages to mediation include:

1. there are additional costs since the parties must pay the mediator’s fees,
2. usually, in a settlement, neither side is completely satisfied.

Arbitration

Another method of resolving a case is by way of arbitration. While some contracts require arbitration in other cases it must be agreed on by the parties otherwise the judge cannot force an arbitration to occur.

Arbitration is like a trial but less formal. Witnesses can be called, they swear an oath to tell the truth, the Rules of Evidence may or may not apply, and the arbitration is usually held in front of a specially trained arbitrator, often a retired judge.

This method can take two forms, binding arbitration or non-binding arbitration.

Binding arbitration means the arbitrator’s decision is final, the parties cannot decide they do not like the decision and then proceed on to trial in the original court nor can they appeal the decision.

Non-binding arbitration means that if either, or both, of the parties do not like the decision then they can go back to court, proceed with their regular trial preparation and, ultimately, take their case to a judge or jury trial.

The advantage to arbitration is that the case will often be resolved earlier than with a trial and it is a less formal setting making it less stressful for someone representing themselves. However, as with mediation, an arbitrator has fees which have to be paid by the parties.

Summary

Although a lawsuit may have been filed, a case can still be resolved, with or without lawyers, short of a trial.

Alternative Dispute Resolution offers a number of different methods of settling a case including informal settlement conferences, mediation, and binding or non-binding arbitration. All of these methods have advantages and disadvantages which must be carefully considered but attorneys are using all of them successfully every day and if an attorney can do it, so can our readers.

The latest scam involves a legitimate sounding real estate company from the U.S. with a buyer for your timeshare! Exciting news!

The buyer wants your timeshare so much that they have already placed a deposit into the realtor’s escrow account and all you have to do is wire them the fee of (INSERT DOLLAR AMOUNT HERE) so that they can pay the capital gains tax for Mexico and then the property is sold and the check will be promptly forwarded to you!

Unfortunately, as you may guess from the title of this article it is yet another of the never ending scams that begin when you buy the timeshare.

As we’ve mentioned in numerous articles, the first sign of a scam is them wanting you to send  them money in advance so you can get money later.

Second, another sign of a scam is someone cold calling you with news that sounds too good to be true. Because it is. If people would just stop and think for a second they would realize there are still many, many, MANY timeshares available on the market for no money down so why would someone be willing to pay you for yours?

Third, while Mexico does have a capital gains tax, the concept is based on the premise that you made a profit on the sale. Did you?  Of course not. In addition, a few minutes of research on the internet will quickly reveal the capital gains tax applies to real estate but NOT TO TIMESHARES!

This scam, like all scams, requires the scamee (you) to set aside your common sense and try to grab that pot of gold at the end of the very expensive rainbow.

Just a warning folks, scammers make their money off people being greedy or willing to set aside their common sense. 

Now you know about this scam, we’ll let you know about the next one we see.

Legal arguments are different.

What is a Legal Argument?

When the term “legal argument” is used in the context of court, it means there is a dispute as to a question of fact or of law, usually law, and the parties are attempting to persuade the judge to rule in their favor.

Many pro se litigants (people who represent themselves in a court case) often make the mistake of arguing facts when, in reality, their situation calls for them to be arguing the law.

How to Win a Legal Argument

The way a person, whether a lawyer or a pro se litigant, wins a legal argument is by researching and understanding case law and then applying that case law to the facts in their situation.

Being good at debating/arguing is actually less important than being good at doing legal research and that is where pro se litigants most often fail miserably.

Law schools do very little as far as teaching a law student how to do legal research.There is usually just one class on that topic, and it is taught in the first year. After that, all of the classes provide the law that will be used for that class and so intense research just isn’t done very often. Instead, legal research skills are taught by the law firm for which the graduate goes to work. 

Legal Research

Up until recently (twenty years or so ago), access to the law was usually restricted to legal digests and the books you see in every law library or on any television show involving lawyers. Now, however, with the advent of the internet very little research is actually done in the books, almost all of it is done through just a few websites.

Unfortunately, the two biggest ones, Westlaw and Lexis, are extremely expensive and want long term contracts or even higher by-the-hour pricing for access to their databases. This investment doesn’t actually teach the litigant how to research, it just provides a database on which to search.

In our book, The Guerrilla Guide to Legal Research: Finding the Law for Non-Lawyers we have taken a different position in that we teach non-lawyers the basics of doing legal research and then also provide them a link to a section of Google which contains all of the same case law that the expensive websites have but this particular location is free to use and, using the methods shown in the book, relatively easy to learn to use. Most lawyers are unaware of this free resource and thus continue to pay exorbitant fees for the same materials you can get for free!

Just as with all of  The Guerrilla Guides to the Law, this book is available in an instantly downloadable PDF format (which you can read using the free Adobe Reader program), is written in a way that is easy to understand whether you are a beginner or are more experienced, and is filled with great examples. All of the Guerrilla Guides to the Law are reasonably priced and contain only information you can use. We don’t stick a bunch of extra pages of useless information in our book just to be able to justify charging a higher price.

If you are in a dispute which may lead to a lawsuit, about to be involved in a lawsuit, or have already sued or been sued, then The Guerrilla Guide to Legal Research: Finding the Law for Non-Lawyers is a must have book for your arsenal. Using the knowledge and techniques contained in the book will enable you to prepare for and win legal arguments in any forum, including small claims court, and may make the difference in winning or losing your case!

This comment is a clear indication the person should not be representing themselves in the case because they do not understand how the law works or what is taught in law school.

In law school the students have the least problem reading and understanding statutes or codes and the most problem reading and applying case law. That’s because case law is all about deciding what the concept of the case is actually about and being able to use that concept in a completely different set of facts.

It is impossible for a publisher, no matter the format in which they are publishing information, to direct that information at every set of facts that may come up in a case. Instead, what they have to do is explain the concept as broadly as possible and then rely on the intelligence of the user to apply it to their set of facts.

That’s also why publishers and writers of self help legal guides give some examples but only a few. The simple fact is that the more examples which are given then the more the reader relies on those examples instead of using the concepts to apply to their own facts and  case.

In short, what that means is no one should expect a book, podcast, or video to apply directly to their facts. What they should do is read the information and then THINK about how the concepts apply instead of looking for a specific form.

Lawyers win cases against pro se litigants not because they are smarter but because they understand how to find law and how to apply it in that specific case. They don’t spend all of their time looking for “a form”, they spend time looking for the knowledge that allows them to draft their own documents.

Anyone can represent themselves, the problem is not anyone can do it well.

But where does evidence come from?

Usually a party to a case will have at least some evidence, whether it be documents, photographs, or other tangible items. In addition, evidence can also be the testimony of a party or someone else. 

However, the best place to start accumulating evidence as well as finding out the other side’s case is through the use of discovery. Interrogatories, requests for production, and requests for admission sent to the other party will often provide all of the evidence necessary to win a case.

While I try to avoid “war stories” of my time as a lawyer on this website, sometimes they are illustrative. I can remember one particular child custody case where we were fighting against Child Protective Services and our discovery requests yielded almost 10,000 pages of documents. I personally looked at every word on every page of those documents at least three times and when we got to trial I had a hundred or so marked as exhibits and ready to go.

After the second day of trial, it was obvious we were winning the case by a comfortable margin since the CPS workers were falling apart every time we cross examined one and the documents I was using would appear to catch them in lies no matter what their stories were. In reality, different workers had told different versions of what had happened in their reports and so, no matter what they answered on the witness stand, I had a document by someone else that said the opposite.

After the case was over, one of the lawyers for CPS asked, “Where did you get all of those documents?” I never answered and he never knew that they had provided them all to us since, apparently, they had never taken the time to go through the boxes and boxes of documents they sent to us.

Doing discovery correctly is extremely important and there are no forms that provide the exact questions to ask for every case. However, just as with all other parts of the law, if you understand the concepts behind discovery then you can draft your own to suit your particular case. Our book, The Guerrilla Guide to Written Discovery (Civil) provides the knowledge you need to use discovery to your advantage. Like all of our books, it has some forms in it to use as examples but the primary focus is not on providing forms, it is on teaching you the concepts so you understand why you are taking certain steps and thus when you are faced with issues unique to your case, you will be able to figure out what to do.

Equally important to having evidence is being able to get it admitted by the court. Every state except Virginia as well as the federal court system has Rules of Evidence which set forth what is proper and what is not allowed. However, the rules themselves are often confusing which is why we wrote The Guerrilla Guide to Trial Objections. This book explains how to object to evidence as well as how to respond to the objections you are likely to face at trial.

Being knowledgeable and prepared are the keys to winning your case!

First, a word of warning. People should be very, very careful about where they obtain information they intend to use to guide them in their lawsuits or in court. I’m always amazed at not only the amount of absolutely incorrect information out there but the vehemence with which its proponents try to convince people of its effectiveness.

If you are one of those who choose to believe that the government is forbidden to collect taxes, that courts have no authority because you are a sovereign person, or any of the other arguments which repeatedly fail then there is nothing we can do to convince you not to try these things. Just know that at the end of the case, when you lose, your attempts to blame the judge, the lawyers, or the system are misdirected. You should look in the mirror and then place the blame squarely where it belong, on your shoulder.

Most pro se litigants don’t lose because they choose to take this road however, they lose because they don’t understand the rules!

The process of a lawsuit is governed by a myriad of rules but generally they can be broken down into:

1. Case law, which is law established by the courts
2. Statutes – laws passed by the legislature
3. The Rules of Civil Procedure – the framework for how trials and lawsuits work, and
4. The Rules of Evidence – which govern how evidence is either admitted or excluded from consideration

We’ll go ahead and put a plug in here for our e-book, The Guerrilla Guide to Legal Research: Finding the Law for Non-Lawyers, which we believe is the best book available to teach a novice how to locate the various rules listed above and which contains a link to an absolutely free legal database as well as directions on how to use it!

Case law is unique, and very fact dependent.  There rarely are two cases which have the exact same facts and therefore finding and applying case law is a bit of an art which requires guidance (if you haven’t done much legal research) but, in addition, also require a lot of practice so the sooner a litigant gets started the better off they are.

However, the Rules of Evidence and the Rules of Civil Procedure (also known as The Rules of Trial Procedure and a few other names) apply in every case and should be referred to throughout the proceeding. If one litigant does not understand these rules and the other one does, the one with the lack of understanding will lose 99% of the time because an understanding of the rules can be used to prevent evidence from being admitted  or cause the pleadings in a case to be struck completely, leaving the party completely at the mercy of the court and the other side.

If your case is worth pursuing or defending then it is worth doing so correctly. If you can’t afford an attorney, and many people can’t, then there is no reason you can’t handle it yourself assuming you are willing to devote the time and energy necessary to read and learn the rules and law.

For a listing of all of our Guerrilla Guides to the Law please visit the web page devoted to them at this location.

Preparing for Appeal Starts During Trial

One aspect of civil procedure that is often overlooked is preparing a case for appeal. When a good trial lawyer is handling their case they are looking not only at getting the win at trial but also at preparing the case for appeal if they lose. Every lawyer who tells the truth will tell you they have won some cases they should have lost, and lost some cases they should have won so doing your best at trial but preparing for appeal is the smart way to go.

When a court of appeals reviews a case they can only look at evidence which was admitted or which was rejected but “preserved for appeal”. One of the ways to preserve matters for appeal is through an offer of proof.

Offer of Proof

Offers of proof are covered in several of the Guerrilla Guides to the Law, but essentially they are based on Rule 103 of the Rules of Evidence. Most state’s rules are based on the federal rules so we’ll insert that one here for you to review in its entirety:

Rule 103. Rulings on Evidence

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.

(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

Reviewing Rule 103 of the Rules of Evidence

Essentially, what this rule states is that if the judge isn’t going to admit something into evidence you can offer it as an “offer of proof” purely for appellate purposes so the court of appeals can see the materials and then decide whether the judge was correct in their ruling as well as whether the evidence would have made a difference in the ultimate decision on the case.

What is particularly critical here is the timing. An offer of proof does not have to be made at the time the evidence should have entered the trial, simply offering it and having the judge overrule its admission is sufficient, but it must be made before the jury is “charged”. Most lawyers make it a habit of making the offer of proof at the very next break so that they are sure not to forget it in the flurry of things which happen when a case is wrapping up and we’d suggest you do the same.

The procedure for an offer of proof is simple and is set out in an excellent article by Judge Bonnie Sudderth of the 352nd District Court of Tarrant County, Texas, at this link. The article is directed at attorneys, but serves equally well for pro se litigants.

” The mechanics of making an offer of proof are straight-forward.  The proponent simply needs to demonstrate the nature of the evidence with enough specificity so that the appellate court can determine its admissibility.  This can occur in one of two ways, both of which occur outside the presence of the jury. 

The easiest way is for the attorney to summarize the substance of the testimony.  Most attorneys and judges prefer this method because of its simplicity and expediency.  The second method is to call the witness to the stand and elicit the testimony in question-and-answer form.  While this approach is less convenient and more tedious, a question-and-answer format is mandatory if the other side demands it. 

For tangible evidence, simply mark the evidence as an exhibit and request its inclusion in the record on appeal.  (The same thing can be done for deposition testimony which has been excluded.)

Always keep in mind that an offer of proof is just that – an offer.  Therefore, at the conclusion of the recitation or presentation of the evidence, the proponent of the evidence should re-urge its admission.  As with any other offer of evidence, a ruling must be secured in order to preserve error.  In other words, after giving the court a second chance to consider the evidence, the attorney should secure a final ruling on admissibility.”

While the offer of proof is not the only section of the rules you need to know, it is certainly one of the most important and using this tool will enable you to receive a full review of your trial and can give you a second shot.