Commentary: Missouri Supreme Court reasserts proper procedure for offers of proof

Every trial lawyer knows that when a court excludes a witness’s testimony, an offer of proof is necessary to preserve any argument that the exclusion was error. How to conduct a proper offer of proof, however, may not be so clear. Recently, in Schultz v. Great Plains Trucking, Inc., the Missouri Supreme Court discussed what it determined to be improper preservation in the context of an excluded expert witness in a wrongful death case. 707 S.W.3d 570 (Mo. 2025).

In Schultz, a case involving an accident between a tractor-trailer and a car, the defendants, the trucking company and its driver, wanted to put on expert testimony of a doctor who would testify that the driver of the vehicle in which the decedent was riding was under the influence of THC, which caused the crash.

Before trial, the plaintiffs filed a motion to exclude the doctor’s testimony, which was granted by the trial court. In response, the defendants filed a motion to reconsider, attaching the  deposition transcript as an exhibit.

At a hearing on the morning of trial before the venire panel was sworn, the trial court overruled the motion for reconsideration. Counsel for the defendant then sought a continuing objection to which the trial court responded, “[t]hat seems reasonable.” Defense counsel further indicated that they intended to file a written offer of proof with the doctor’s deposition transcript attached, and counsel also asked to make a verbal offer of proof, during which counsel stated they anticipated the doctor would testify consistently with the doctor’s depositions and the defendants’ disclosures related to the doctor.

According to the Supreme Court’s opinion, defense counsel did not seek to introduce the doctor’s deposition and did not raise any objection related to the doctor’s testimony during trial, likely because defense counsel believed they had been granted a continuing objection.

On the final day of trial, defense counsel filed a written offer of proof stating that the doctor would testify consistent with the doctor’s witness disclosure. Defense counsel attached the doctor’s deposition transcript to the motion but did not bring the filing to the court’s attention during trial.

The Supreme Court held that the issue was not preserved for appeal and explained that the offer of proof was insufficient for two reasons.

First, the Court explained that the pretrial filings and verbal offer of proof before the venire panel was sworn did not satisfy one of the two preservation requirements before the trial court: (1) raising the claimed error in a timely fashion by offering the evidence at trial and making a detailed offer of proof when the trial court orders that the evidence is excluded; and (2) including that claim in a motion for new trial.

Specifically, the Supreme Court noted, “[w]hile this Court is sympathetic to the time constraints of trial and the necessity of making a record outside the jury’s presence, a record made the morning of trial before the venire is sworn is not evidence offered at trial.” The Court also stated the written offer of proof on the last day of trial likewise preserved nothing because the filing was not brought to the trial court’s attention to provide an opportunity for the trial court to reconsider its earlier ruling.

Next, and perhaps more enlightening for practitioners, the Supreme Court explained that, even had the manner in which defendants presented their offer of proof been acceptable, the offer itself was insufficient. The Court first reiterated that “[a]n offer of proof must demonstrate the relevancy of the testimony offered, must be specific, and must be definite.” Then, comparing an offer of proof to the procedure required to set forth uncontroverted facts in a summary judgment motion, the Court stated, “the offer of proof requirements do not require the circuit court or an appellate court to sift through the court filings to determine an offer of proof has been filed, to address the filing sua sponte, or to review an entire deposition transcript to determine what, if any, testimony might have been admissible if offered at trial or through a proper offer of proof.”

Although this decision does not change the procedure for a proper offer of proof, a wise practitioner would take to heart the Court’s reminder that the offer of proof must be specific and definite and that the evidence must be offered during trial. Best practices involve bringing the witness to trial and offering the specific testimony and evidence on the record outside of the hearing of the jury. When that method is impossible or impractical, it is important to set out the specific testimony or evidence that would be presented, including its relevancy to the case, with specific citations to any supporting documents such as a deposition transcript.