Civil Procedure Multistate Bar Practice Exam

What happens if a party fails to object to the variance during a trial?

1. The evidence is excluded from the trial

2. The party may move to amend the complaint to conform to the evidence

3. The trial is dismissed

4. Nothing changes, as objections must be made before trial

The correct answer is: The party may move to amend the complaint to conform to the evidence

When a party fails to object to a variance during trial, the most appropriate outcome is that the party may move to amend the complaint to conform to the evidence presented. This reflects the principle that when issues are tried by implied consent of both parties, the court may allow amendments so that the pleadings align with the evidence that has actually been presented. In civil procedure, a variance occurs when the evidence presented at trial does not match the allegations made in the pleadings. If one party does not raise a timely objection to this variance, they essentially consent to the trial proceeding based on the evidence rather than the strict conformance of the pleadings. Therefore, the party who identifies the inconsistency has the option to amend their pleadings to better fit the facts established during the trial. The options that suggest evidence being excluded or the trial being dismissed do not align with common civil procedure practices. Such actions are generally reserved for more significant issues or substantial failures in procedural requirements, rather than a mere variance that could be corrected through an amendment. Additionally, claiming that nothing changes because objections must be made before trial does not accurately represent the procedural flexibility allowed after evidence is introduced at trial. The absence of an objection allows the trial to continue and facilitates the opportunity for amendments to