Legal Definitions - avowal

An avowal is a formal declaration made by an attorney during a trial, typically when the jury has been temporarily excused from the courtroom. It occurs after the opposing attorney has successfully objected to a question, preventing a witness from providing an answer.

The primary purpose of an avowal is to create a clear record of what the witness's testimony would have been if the objection had not been sustained. This serves two critical functions:

• It informs the trial judge of the specific evidence that was excluded, allowing them to reconsider their ruling if necessary.
• More importantly, it preserves the excluded testimony for a potential appeal. If a higher court later reviews the case, the avowal provides a record of the evidence that was kept out, allowing the appellate court to determine if the trial judge's decision to exclude it was legally incorrect. If the appellate court finds an error, the case might be sent back for a new trial where that testimony would be allowed.

Here are a few examples to illustrate how an avowal works:

• Example 1: Personal Injury Lawsuit

  Imagine a car accident case where the plaintiff's attorney tries to ask a witness if they had ever seen the defendant speeding excessively in the neighborhood before the accident. The defense attorney objects, arguing that past driving habits are irrelevant to this specific incident and could unfairly prejudice the jury. The judge agrees and sustains the objection, preventing the witness from answering.

  At this point, the plaintiff's attorney might request an avowal. With the jury out of the room, the attorney would formally state for the court record that the witness *would have testified* to seeing the defendant regularly driving at high speeds on that particular street, providing specific dates or instances. This avowal creates a record of the excluded testimony, allowing an appellate court to later decide if the judge was wrong to exclude evidence that might have shown a pattern of reckless behavior relevant to the defendant's negligence.

• Example 2: Contract Dispute

  In a business lawsuit concerning a breach of contract, one party's attorney attempts to introduce testimony from a former employee about an informal verbal agreement that allegedly modified a clause in the written contract. The opposing counsel objects, citing the "parol evidence rule," which generally prevents the introduction of oral agreements made before or at the same time as a written contract if they contradict its terms. The judge sustains the objection.

  The attorney whose evidence was excluded would then make an avowal. They would state for the record that the witness *would have testified* to a specific conversation where both parties verbally agreed to extend a project deadline, which is crucial to their defense that they did not breach the contract. This avowal ensures that if the case goes to appeal, the higher court can review whether the judge correctly applied the parol evidence rule or if an exception should have allowed the verbal agreement to be considered.

• Example 3: Defamation Case

  Consider a civil lawsuit where a plaintiff claims they were defamed. The plaintiff's attorney calls a character witness to testify about the plaintiff's excellent reputation for honesty and integrity in the community, aiming to show the extent of harm caused by the defamatory statements. The defendant's attorney objects, arguing that the witness's testimony is based on hearsay or is not directly relevant to the specific defamatory statements made. The judge sustains the objection.

  The plaintiff's attorney would then make an avowal, formally stating that the witness *would have provided* specific examples of the plaintiff's trustworthiness and how their reputation was highly regarded by many, thereby demonstrating the significant damage to their standing. This avowal creates a formal record of the excluded character testimony, which an appellate court could later review to determine if the trial judge improperly limited evidence crucial to proving the plaintiff's damages and the impact of the defamation.