The Journal of The DuPage County Bar Association

Back Issues > Vol. 24 (2011-12)

A Practical Guide to Preserving Your Record For Appeal
By James P. Marsh

Lawyers tend to understand the basics pretty well:  you preserve your record for appeal by making objections during trial.  Our state’s courts of review, however, teach us that it is a bit more nuanced than that.  The road to and through the appellate court is full of pitfalls for the unwary trial attorney. 

The essential methods of preserving your record for appeal are to prepare motions in limine concerning anticipated objectionable evidence during trial; to object when objectionable evidence is introduced at trial, regardless of whether your motion in limine was submitted or denied; to move to strike evidence that was introduced subject to later proof, if the later proof was not made; and to repeat your objections in a post-trial motion if you received adverse rulings during trial.

The 300 Series Supreme Court Rules provide the framework for an appellate court practitioner, and should be the starting point for an attorney before trial, and before and during the appeal.

The Record on Appeal. Generally, the record on appeal is comprised of: (1) the judgment appealed from; (2) the notice of appeal; (3) the report of proceedings prepared in accordance with Illinois Supreme Court Rule 323; and (4) the entire original common law record, which is made up of every document filed during the pendency of the case, as well as the judgment order entered, and any documentary exhibits offered and filed by any party.[1]  On motion during the appeal, the reviewing court may order that other exhibits be included in the record.[2]   Also, the record on appeal may be amended under appropriate circumstances.[3] 

The record on appeal is the starting point, and is therefore of obvious importance. A reviewing court must determine the issues before it on appeal solely on the basis of the record made in the trial court.[4]  Evidence that is not a part of the record on appeal will not be considered by a reviewing court, and attachments to briefs on appeal, not otherwise before the reviewing court, cannot be used to supplement the record.[5] 

A reviewing court generally does not take judicial notice of critical evidentiary material not presented in the court below, and that is especially true of evidence that may be significant in the proper determination of the issues between the parties.

The Failure to Raise an Issue or Object:  Waiver. Generally, issues raised for the first time on appeal are waived.[6]  Stated differently, the general rule is that objections not made at trial are waived on review.  The courts recognize many different ways that parties may commit a waiver: (1) Acquiescence or inducement: A party is estopped from claiming error on an issue that the party induced the court to make or to which the party assented.[7]  (2) Change of trial theory: The theory under which a case has been tried in the trial court cannot be changed on review.[8]  (3) Unspecified grounds for objection: An objection at trial on a specific ground forfeits all objections on unspecified grounds.[9] (4) Motion in limine denied: Where a party's motion in limine to exclude evidence is denied and the party fails to object to the evidence when it is introduced at trial, the party waives the objection on review.[10] (5) Jury Instructions: A party waives its objections to an improper jury instruction unless it both (a) objects to the improper instruction at the instruction conference, and (b) proffers a correct instruction.[11]  (6) Failure to rule on objection: A party waives an objection where a ruling is not requested after the trial court fails to make one.[12] (7) Offer of proof: Failure to make an offer of proof with respect to a ruling excluding evidence waives the issue for appeal.[13]

Post-trial motion.  In jury cases, a party may not urge as error on review of the party's post-trial motion any point, ground, or relief not specified in the motion.[14]  In non-jury cases, however, neither the filing of nor the failure to file a post judgment motion limits the scope of review.[15]

Our courts of review have carved out certain limited exceptions to the waiver doctrine.  Importantly, waiver is considered a limitation on the parties, not the reviewing courts.  Reviewing courts “may look beyond considerations of waiver in order to maintain a sound and uniform body of precedent or where the interests of justice so require.”[16] 

Also, the appellate court may review claims of error which were not properly preserved at trial where the act complained of was a prejudicial error so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process itself.[17]  A careful practitioner would be wise not to assume that an appellate court will save the day by invoking this “plain error doctrine.”

The issue of subject matter jurisdiction cannot be waived, and may be raised at any time.[18]  Also, in the Illinois Supreme Court, where the trial court did not rule on an issue of public importance, but the issue was argued and decided by the appellate court, the Supreme Court will consider it.[19] 

Finally, the courts hold that repeating an objection throughout the trial is not necessary to preserve the issue for appeal.  Once the court has ruled, the party is entitled to assume that the trial judge will continue to make the same ruling and the party need not repeat the objection.[20] 

Opening Statement and Closing Argument. Trial attorneys must object during their opponent’s opening statement and closing argument to preserve an objection for appeal.  Absent good faith, it is reversible error to comment in an opening statement about evidence that counsel does not intend to prove.[21]

With respect to closing arguments, an attorney is permitted wide latitude in closing argument, and a judgment will not be reversed unless the challenged remarks were of such a character that they prevented the other party from receiving a fair trial.[22]  However, the failure to object to comments made during the closing argument is considered a waiver of the objection.[23] 

Offers of Proof. The flipside to an objection or motion in limine seeking to exclude evidence is the offer of proof. To preserve an error in the court’s exclusion of evidence one wants submitted, the proponent of the evidence must make an adequate offer of proof in the trial court.  Where an offer of proof is necessary, it is error for the trial court to refuse the proponent's request to make one.[24]

An adequate offer of proof apprises the circuit court of what the offered evidence is or what the expected testimony will be, by whom it will be presented, and its purpose.  The purpose of an offer of proof is to disclose to the circuit court and opposing counsel the nature of the offered evidence and to enable a reviewing court to determine whether the exclusion of the evidence was proper.[25]  The failure to make an offer of proof results in waiver of the issue on appeal.[26]  There are two recognized types of offers of proof, “formal” and “informal.”

A formal offer of proof involves the proposed evidence or testimony being formally offered in a question and answer manner outside the presence of the jury, and is generally required to preserve the issue of whether preclusion of the evidence was proper.[27]

An informal offer, where counsel merely summarizes for the court what the proposed evidence or testimony will 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.[28] 

To err on the safe side, counsel should seek a formal offer of proof whenever possible.  Informal statements by counsel that are unsupported speculation, lacking in specificity or conclusory are insufficient to preserve the issue of exclusion for review.[29]  Whether a court will accept an informal offer of proof through the statement of an attorney depends on the specificity of the statement.[30] 

Additionally, an appellate court may look only at the purposes of an offer of proof as stated on the record, and may not consider on review purposes for evidence that were not offered at trial.[31]  In other words, a reviewing court will not consider an argument in an appeal brief that evidence was improperly excluded at trial, where the argument on appeal is based on a purpose for the evidence that was unstated in the proponent's offer of proof.

Finally, where a single offer of proof is made and part of the evidence offered is inadmissible, the trial court does not err if it excludes all of the testimony offered.[32] The duty is on the proponent of the excluded evidence to obtain a separate ruling as to each portion of the evidence deemed salvageable.

Conclusion. Awareness of the forgoing rules will assist practitioners in preserve issues for appeal.

[1]               Ill. S.Ct. Rule 321. 

[2]               Id.

[3]               Ill. S.Ct. Rule 329.

[4]               Lake v. State, 401 Ill.App.3d 350, 352 (5th Dist. 2010).           

[5]               Id.

[6]               Gaston v. Founders Ins. Co., 365 Ill.App.3d 303, 311 (1st Dist. 2006). 

[7]               In re Swope, 213 Ill.2d 210, 217 (2004).

[8]               In re Schneider, 214 Ill.2d 152, 172 (2005).

[9]               Auton v. Logan Landfill, Inc., 105 Ill.2d 537, 548-9 (1984); In re Sandry, 367 Ill.App.3d 949 (2d Dist. 2006).

[10]             Illinois State Toll Highway Auth. v. Heritage Standard Bank and Trust, 163 Ill.2d 498, 502 (1994); Spyrka v. County of Cook, 366 Ill.App.3d 156, 165 (1st Dist. 2006).

[11]             Ozik v. Gramins, 345 Ill.App.3d 502, 520 (1st Dist. 2003).

[12]             Shield's Pork Plus, Inc. v. Swiss Valley Ag Serv., 329 Ill.App.3d 305, 313 (4th Dist. 2002).

[13]             In re Kamesha J., 364 Ill.App.3d 785, 792 (1st Dist. 2006).

[14]             Ill. S.Ct. Rule 366(b)(2)(iii).       

[15]             Ill. S.Ct. Rule 366(b)(3)(ii). 

[16]             In re Estate of Funk, 221 Ill.2d 30, 98 (2006).

[17]             People v. Glasper, 234 Ill.2d 173, 197-98 (2009). 

[18]             Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill.2d 325, 333-4 (2002).      

[19]             In re Marriage of Rodriguez, 131 Ill.2d 273, 279 (1989) (referring to issues of "public importance"); People v. Bell Mut. Cas. Co., 54 Ill.2d 433, 439 (1973) (emphasizing that this exception applies to issues of "great" public importance).

[20]             Illinois State Toll Highway Auth. v. Heritage Standard Bank and Trust, 163 Ill.2d 498, 502 (1994); Spyrka v. County of Cook, 366 Ill.App.3d 156, 165 (1st Dist. 2006).

[21]             Sutton v. Overcash, 251 Ill.App.3d 737, 762 (3d Dist. 1993).                

[22]             Id., 251 Ill.App.3d at 763.        

[23]             Id.

[24]             In re Marriage of Suriano, 324 Ill.App.3d 839, 850 (1st Dist. 2001); In re Kamesha J., 364 Ill.App.3d 785, 792 (1st Dist. 2006). 

[25]             Id. 

[26]             Id

[27]             People v. Wallace, 331 Ill.App.3d 822, 831 (1st Dist. 2002); Hall v. Northwestern Univ. Med. Clinics, 152 Ill.App.3d 716, 722 (1st Dist. 1987). 

[28]             Id

[29]             Chicago Park Dist. v. Richardson, 220 Ill.App.3d 696, 701-2 (1st Dist. 1991). 

[30]             State Farm Gen. Ins. Co. v. Best in the West Foods, Inc., 282 Ill.App.3d 470, 482 (1st Dist. 1996). 

[31]             Hairgrove v. City of Jacksonville, 366 Ill. 163, 182 (1937). 

[32]             Hairgrove v. City of Jacksonville, 366 Ill. 163, 182 (1937); Rinesmith v. Sterling, 293 Ill.App.3d 344, 348 (4th Dist. 1997).

James P. Marsh is a partner in the Lisle office of Momkus McCluskey, LLC.  He received his B.A. in 1983 from Eastern Illinois University, and his J.D. in 1988 from The John Marshall Law School.  Prior to joining Momkus McCluskey in 1997, Jim practiced at a large Chicago-based litigation firm. Jim’s practice concentrates in the areas of casualty defense, municipal liability, insurance coverage, appellate, and professional liability defense litigation.  Jim is a member of the Defense Research Institute, Illinois Association of Defense Trial Counsel, Illinois State Bar Association, and the DuPage County Bar Association, and is the former (2001-02) Editor the DCBA Brief.

DCBA Brief