To Renew Or Not To Renew: Preserving Objections To Evidentiary Rulings

by Carlton Fields

Under Florida’s Evidence Code, “[i]f a court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or make an offer of proof to preserve a claim of error for appeal.” § 90.104, Fla. Stat. This seems straightforward, except how can you be certain whether the ruling you received is “definitive”? If you need to renew your objection to an in limine ruling or make a proffer and do not, the issue will not be preserved for appeal. If you do not need to renew your objection at trial and do so, you could unnecessarily irritate jurors with objections.

Before Florida enacted this rule in 2003, obtaining an in limine ruling was not sufficient to preserve an error for review. A specific, contemporaneous objection still had to be made when the evidence was offered during trial. Yet, even then, if an issue was raised before trial and again in the early stages of trial, and the trial court had made its decision clear, a party did not need to renew its objection each time the evidence arose if doing so would have been “obviously futile.” Now, if a ruling is definitive before trial, it need not be raised at all during trial—unless, of course, it is strategically advantageous to do so.

When faced with a motion in limine and limited understanding of the facts and issues in a case, a trial court may defer ruling on a motion or issue a ruling but indicate a willingness to reconsider its ruling. Such actions are not “definitive” within the meaning of section 90.104, and do not preserve an issue for appeal. In such situations, you must renew your evidentiary objection at the appropriate time during trial. If you were seeking to exclude evidence, you must object when your opponent seeks to introduce it. If you were seeking to introduce evidence, you must make a proffer. Indeed, the trial court could change its mind as the case unfolds. It is important to be sure to obtain a ruling on your renewed objection for preservation purposes.

Whether the court’s pretrial in limine ruling is definitive may turn on precisely what the court said. For example, in one case, the trial court denied a plaintiff’s motion in limine to exclude “all references” to a prior personal injury lawsuit. In doing so, the court explained that some references to the prior suit might be relevant depending on the context. The court then indicated that it would be open to renewed objections if counsel believed any particular questions were irrelevant and that it would “make a ruling at that time.” Counsel, believing the initial ruling was definitive, did not renew its objections during trial. On appeal, the district court recognized that some of the testimony procured about the prior lawsuit was absolutely irrelevant. However, it concluded that the issue had not been preserved because the trial court’s ruling, with its recognition that the issue was context dependent, was not definitive. As such, plaintiff’s counsel needed to object “on a question-by-question basis to preserve the matter for appellate review.” Williams v. Lowe’s Home Ctrs, Inc., 973 So. 2d 1180, 1185 (Fla. 5th DCA 2008).

If the trial court makes a definitive ruling on the record before trial, further objections become unnecessary. This includes not only objecting to the introduction of particular evidence, but also objecting to closing arguments referring to that evidence. A definitive evidentiary ruling, however, does not alleviate the need to move for a mistrial if a comment made during trial is so prejudicial that doing so would be proper. It also does not preclude you from introducing evidence you sought to exclude in an effort to minimize its prejudicial impact.

Even if you received an undoubtedly definitive ruling, you may be left wondering whether you should make an offer of proof. Although section 90.104 does not require a proffer to preserve a court’s definitive ruling excluding certain evidence from trial, doing so may still be valuable. Because of the deference that appellate courts afford trial courts with regard to evidentiary rulings, an appellate court will likely affirm the exclusion of evidence in the absence of a proffer unless the transcript from the motion in limine hearing makes clear the specific evidence being excluded and its intended purpose. Additionally, even though you may have made clear to the judge the value of introducing certain evidence at the motion in limine hearing, a proffer at a later time during the trial may prove useful because, as the Fifth District aptly put it, “[t]he ‘shifting sands’ of trial may cause a judge to rethink an earlier evidentiary ruling based on a matured understanding of the case.” Spindler v. Brito-Deforge, 762 So. 2d 963, 964 (Fla. 5th DCA 2000).

Indeed, because of these “shifting sands,” a definitive in limine ruling may cease to be definitive if the evidence introduced at trial materially differs from the pre-trial representations made to the court when it ruled on the motion. Counsel of a party whose motion in limine was denied must therefore pay close attention during trial to whether the evidence on the issue mirrors what opposing counsel told the trial court it would be. If the evidence deviates from the pre-trial representations, you must renew your objection to preserve the issue for appeal.

If you are unclear as to whether a judge’s evidentiary ruling is definitive, and do not wish to impede the flow of trial with repeated objections, you may wish to consider requesting a standing objection. This would not solve preservation difficulties that could arise from the “shifting sands” of trial, but it could resolve other uncertainties as to your need to renew an objection. Without a standing objection, it would be wise to renew your objection or proffer at the appropriate time during trial to alleviate any doubt.

Finally, if the opposing party successfully excludes your presentation of evidence through a definitive in limine ruling, but then introduces evidence at trial that opens the door to such evidence, you must object to the presentation of such evidence to claim error. You may also be able at that point to introduce your evidence despite the judge’s earlier ruling. Indeed, refusing to allow your evidence based on an earlier ruling in such a situation could be reversible error.

The renewal rule of section 90.104, Florida Statutes, was intended to assist trial counsel who, despite obtaining an unequivocal evidentiary ruling from the court, inadvertently waived an issue for appeal by not timely renewing the objection during trial. Of course, it only achieves that purpose if trial counsel knows whether the court has issued a “definitive” ruling. Having appellate counsel present at your trial, who are well-versed in the case law as to what constitutes a definitive ruling, can help ensure your issues are preserved for appeal.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Carlton Fields | Attorney Advertising

Written by:

Carlton Fields

Carlton Fields on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.