The Formal Bill of Exception

October 11, 2011

Previously, we took a look at the offer of proof, which is also known as the “informal” bill of exception. The informal bill is a tool of error preservation, and is used to inform the appellate court of the substance of evidence which the trial court refused.

In addition to an informal bill of exception, the Texas rules provide for a formal bill of exception as well. Although they share a similar name, generally one cannot substitute for another. Informal and formal bills are rarely interchangeable because they are intended for different situations and designed for different purposes.

One characteristic that both formal and informal bills share is that they both serve to supplement the record for appellate purposes and preserve error for appellate review. However, they differ in what they actually prove. An informal bill of exception provides proof of the substance of something that was not permitted into evidence at trial. A formal bill of exception, however, provides proof of something that occurred at trial but isn’t reflected in the record. For example, if a judge made a ruling during the course of a trial which wasn’t included in the court reporter’s record, then the attorney complaining of the ruling could seek a formal bill in an attempt to get the ruling included in the record on appeal.

A second difference between an informal bill and a formal bill is one of timing. Informal bills must be made before the jury is charged, or any error in excluding evidence is waived. A formal bill isn’t due for filing until 30 days after the Notice of Appeal has been filed.

Another, perhaps technical, difference between an informal bill and a formal bill is where they appear in the record. Informal bills will be included in the reporter’s record on appeal, whereas formal bills will be found in the clerk’s record.

The Judge’s Bill: While there are two types of formal bills of exception, for all practical purposes nowadays there is really only one: the “judge’s bill.”  Rule 33.2 of the Texas Rules of Appellate Procedure  provides that when a party wants to complain about a matter which does not appear in the official record of the proceedings, the party should present to the trial judge a formal bill of exception. While there are no magic words which should be used in a formal bill, the rules do require that the bill be sufficiently specific to make the trial court aware of which of the trial court’s actions or rulings is being complained of. Once presented with the bill, what the judge chooses to do with it depends upon the posture of the parties and, in some instances, the discretion of the judge.

If both sides agree to the contents of the formal bill, then the court has no discretion but to sign the bill and file it with the clerk. (According to the rule, this is mandatory even if the judge disagrees with what the parties agree to.) Absent agreement, however, on the bill’s contents, then, after notice and hearing on the matter, the court will be left with three options:

  1. If the judge agrees with the bill, then the judge will sign it and file it with the clerk. If the judge disagrees with the bill, then the judge may suggest corrections to it that, in the court’s opinion, would make it accurate. If the moving party accepts and makes the suggested corrections, then the judge will sign the corrected version and file it with the clerk. (Interestingly enough, if a formal bill of exception conflicts with a reporter’s record, the bill, not the reporter’s record, controls.)
  2. If the moving party disagrees with the suggested corrections, then the judge will return the bill marked “refused” and will instead file a judge’s bill (usually prepared by the other side) which, in the court’s opinion, accurately reflects what occurred.

The Bystander’s Bill: The second type of formal bill, the “bystander’s bill,” is filed by a party who is dissatisfied with the judge’s bill. Today, the bystander’s bill has become a rarity, at least in civil trials. This is because a bystander’s bill must be supported by the affidavit of three disinterested witnesses who were present in the courtroom and witnessed the event which does not appear in the record. These three disinterested bystanders must also attest to the correctness of the bill which the judge refused. (The refused bill must be filed with the clerk as well.)

The requirement that these bystanders be disinterested disqualifies most everyone who is present in the courtroom during the trial of most civil cases today. (Attorneys, parties, and paralegals are all considered “interested.”) The rule permitting the bystander’s bill is still there — TRAP 33.2(c)(3) — but, alas, bystanders are not. With the advent of television and the internet, the bystander’s bill has gone the way of dinnertime conversation, letter-writing and book clubs.

For better or for worse, gone are the days when the courthouse was the center of entertainment for the community. Instead, the community tunes into the more interesting drama of Judge Judy, the People’s Court, and the courtrooms of prime-time T.V. In the event that a courtroom does manage to attract a disinterested audience of three or more — perhaps during a T.V. blackout, or in a criminal trial, which will sometimes manage to muster a decent-sized live audience despite today’s competitive entertainment market — a bystander’s bill will be the only recourse in challenging the accuracy of the judge’s bill. When this happens — when the court of appeals is presented with competing bystander’s bills and judge’s bills — the appellate court will sit as a fact-finder to determine which bill correctly reflects what actually occurred in the courtroom.

— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas

The Offer of Proof

October 1, 2011

Perhaps the broadest discretion enjoyed by trial judges is in the admitting or excluding of evidence at trial.  Much of the protection afforded a trial court judge in making evidentiary rulings is found in Rule 103 of the Texas Rules of Evidence, which clearly provides that an erroneous evidentiary ruling, standing alone, is not enough to get a case reversed on appeal.

First, as the rule makes clear, a bad evidentiary call isn’t even error unless it affects a “substantial right” of a party.  In other words, even if the appellate court disagrees with the judge’s evidentiary ruling, if the ruling did not affect the “substantial rights” of a party, there will be no error on appeal. The second, and perhaps most significant reason why trial courts are rarely reversed on appeal for evidentiary rulings is because most errors are waived.  Whether admitted or excluded by the court, Rule 103 provides the guideline on how to preserve error on the ruling. 

If the error is one of admitting evidence, then the steps for preserving error are fairly simple.  The party seeking its exclusion must make a timely and specific objection or motion to strike.  The two essential components of this rule are that the objection be timely and include specific grounds, unless apparent from the context. 

If the error is one of excluding evidence, then preservation of error becomes a bit trickier.  In most circumstances, Rule 103 requires that the proponent of excluded evidence make an “offer of proof” in order to preserve any error on appeal. 

An “offer of proof” is an informal bill of exception, and its purpose is two-fold:  (1) to give the trial court a second chance to look at the evidence before finally ruling on its admissibility, and (2) to complete the record on appeal so that it is clear to the appellate court exactly what was excluded at trial.

With offers of proof, timing is key.  Rule 103 provides that an offer of proof must be made before the jury is charged.  This deadline makes sense.  After all, if one rationale for requiring an offer of proof is to give the trial judge a second chance to make the correct ruling, it would make no sense for an offer of proof to occur after the time for introducing evidence has passed.

Trial courts have broad discretion in directing when the offer of proof can be made, but it is the attorney’s duty to make sure it’s timely.  What this means is that if the trial court directs an attorney to wait until lunchtime, or the end of the day, or some other time to make the offer, it will be incumbent upon the attorney to remember to make the offer at the appropriate time.  However, if the trial court refuses to allow an attorney to make the offer prior to the jury being charged, then reversible error has occurred.  4M Linen & Uniform Supply Co. v. Ballard, 793 S.W.2d 320 (Tex. App. – Houston [1st Dist.] 1990). 

Once the jury has been charged, the time for making an offer has passed.  Tempting though it may be, it is inadvisable for the parties to “agree” to postpone the making of offers until after the jury has begun deliberations.  While arguably a valuable time-saving device, this would thwart one of the primary purposes of the offer.  After all, what would happen if the court actually decided to admit the evidence which the parties agreed to offer while the jury was deliberating?

Furthermore, an attorney should never make a late offer when the trial court has refused to allow a timely one.  In this circumstance, the trial court has committed reversible error, and in the event of an adverse verdict, a new trial is guaranteed.  Why make a late offer and risk satisfying the appellate court that the trial court’s ruling was correct after all?  Id.

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.

One last pointer for those who successfully argued for exclusion:  If the excluded evidence could have been impeached or discredited through cross-examination, then it is a good idea to request a question-and-answer format during the offer of proof, followed by a request for brief cross-examination.  On appeal, an effective cross-examination may demonstrate that there was no harm in the trial court’s exclusion of the evidence, even if such exclusion was erroneous.

— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas

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