verdict for plaintiff on liability, based on appellate court’s review of evidence that included photographs of an access ramp). So at the end of each trial, make sure that the trial exhibits are retained in evidence so they may be included in the record on appeal. Many (if not most) clerks retain them by default, so you don’t need to do anything. But in some circuits, the clerk will return the exhibits at the end of each trial unless a party asks for them to be retained in evidence. Ask for them to be retained. And if that option is not available, file copies of your exhibits with the court. This advice applies whether you win or lose at trial. Appellees benefit from having trial exhibits in the record at least as often as appellants do. In addition to exhibits that can be printed on paper (like documents and photographs), the record can also include “tapes, CDs, DVDs, or other similar electronically recorded evidence.” Fla. R. App. P. 9.200(a) (1). So if your evidence includes audio recordings, video recordings, or an enormous number of documents, you can introduce them into evidence in one of these formats and they can be included in the record on appeal. 3. Also ensure that any excluded trial exhibits are in the record. Exhibits that were excluded from evidence must be included in the record for an entirely different reason: to preserve the issue of whether the trial court erred in excluding them. Whenever the trial court excludes evidence, an offer of proof is usually necessary to preserve any error for appellate review. Brantley v. Snapper Power Equip., Inc., 665 So.2d 241, 243 (Fla. 3d DCA 1995) (citing § 90.104(1)(b), Fla. Stat. (1993)). And when the excluded evidence consists of documents or other exhibits (as opposed to testimony), the offer of proof is done by putting the actual exhibits into the record. They should be marked for identification, fully described on the record, and maintained by the clerk along with the other exhibits offered at trial. See id. (citing Henry P. Trawick, Jr., Trawick’s Florida Practice & Procedure § 22-10, at 333 (1994); Michael H. Graham et al., Florida Evidentiary Foundations 6, n. 9 (1995 Cum. Supp.)); Fla. R. Civ. P. 1.450(b). That way, the appellate court will be able to review the exhibits to determine whether it was error to exclude them. Brantley, 665 So.2d at 243 (citing Trawick, supra). 4. When proffering a witness’s testimony, proffer the actual testimony. Just as with excluded exhibits, an offer of proof—or proffer—is also usually required to preserve an error in excluding a witness’s testimony. § 90.104(1)(b), Fla. Stat. (2017); Finney v. State, 660 So.2d 674, 684 (Fla. 1995); Jacobs v. Wainwright, 450 So.2d 200, 201 (Fla. 1984). The purpose of a proffer is to put the excluded testimony in the record, so
the appellate court can determine whether the testimony should have been admitted and how its exclusion may have affected the verdict. Finney, 660 So.2d at 684; Jacobs, 450 So.2d at 201. There are two ways to proffer testimony. The traditional method is to put the witness on the stand outside the presence of the jury, and examine the witness just as you would if the witness had been allowed to testify at trial. See Musachia v. Terry, 140 So.2d 605, 608 (Fla. 3d DCA 1962); Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 104.3, at 39 (2014 ed.). The other method is to summarize the witness’s testimony for the court in your own words. See Johnson v. Moore, 493 F. Supp. 2d 1236, 1239-40 (M.D. Fla. 2007); Peterson v. State, 465 So.2d 1349, 1350-51 (Fla. 5th DCA 1985); Ehrhardt, supra. The latter method can be very tempting. It is quicker and easier, and in some cases, can be much less costly than bringing the witness to court and putting him or her on the stand. But there are risks to proffering the testimony yourself. One is that you might not describe the testimony in enough detail to make a good record. Appeals have been lost because an attorney’s proffer lacked sufficient detail. See Arrascue v. State, 42 So.3d 927, 929 (Fla. 5th DCA 2010) (defense counsel’s generalized statements about how he intended to cross-examine a witness were insufficient to preserve any error in limiting the cross-examination). And even when an attorney’s proffer is technically sufficient to preserve the issue, it can be too generalized or sterile to build a persuasive case for reversal. Sometimes the witness’s own words can be much more vivid and convincing. Another risk is that opposing counsel might disagree with your representations as to what the witness would say, so the appellate court would not be able to rely on them as a basis for reversal. See Cooper v. State, 137 So.3d 530, 531-32, n. 1, 2 (Fla. 4th DCA 2014) (any error in limiting cross-examination of victim was neither preserved nor fundamental error where, inter alia, the parties disagreed as what the victim would say). Yet another risk is that the trial court might not consider your own proffer to be sufficient. See Holmes v. Bridgestone / Firestone, Inc., 891 So.2d 1188, 1191, n. 1 (Fla. 4th DCA 2005) (“Whether a proffer is sufficient is within the trial court’s discretion.”); see also Johnson, 493 F. Supp. 2d at 1239-40 (it is up to the trial court whether to require a testimonial proffer or a non-testimonial one). You also can never be sure whether the appellate court will consider your summary to be sufficient. Philip J. Padovano, Florida Appellate Practice § 8:6, at 169 (2015 ed.). For these reasons, you should proffer the witness’s own testimony whenever it is feasible to do so. Padovano, supra; see also Donley v. State, 694 So.2d 149, 150 (Fla. 4th DCA 1997) (“Especially where he indicates an openness to hearing a proffer of actual testimony, the trial
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