Also known as: variance between proof and pleadings · variance · pleading variance
Written by attorneys · grounded in primary & secondary sources — see below
A discrepancy between the facts alleged in the pleadings and the evidence offered at trial. Federal rules tolerate such variances when the opposing party implicitly consents by failing to object or when no substantial rights are affected, allowing the court to treat the pleadings as amended.
Vivian Velez was charged with mail fraud based on a specific scheme described in the indictment. At trial the government introduced evidence of an additional fraudulent mailing not mentioned in the charging document. Defense counsel raised no objection during the presentation of that evidence. The court treated the variance as harmless because it did not affect substantial rights and upheld the conviction.
Vincente Vukovic sued an insurer for policy benefits. The complaint alleged only one covered loss, yet at trial the plaintiff introduced proof of a second loss. Defense counsel did not object. The court treated the pleadings as amended by implied consent and allowed recovery on both losses.
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Violet Vang sued a manufacturer for product defect. The complaint pleaded only manufacturing defect, but evidence at trial addressed design defect as well. The defendant offered no objection. The court deemed the pleadings amended and submitted the design theory to the jury.
Vito Villarreal sued for breach of contract. The complaint alleged only written terms, yet the plaintiff proved an oral modification. Opposing counsel remained silent during that testimony. The court found implied consent and treated the pleadings as amended to include the oral term.
Vaughn Valentine sued for conversion. The complaint described specific chattels, but proof at trial included two additional items. No objection was made. The court disregarded the variance because it did not affect substantial rights and entered judgment for all items proved.
Virgil Volpe sued a seller for fraud in a land deal. The complaint alleged only affirmative misrepresentations, but evidence showed nondisclosure as well. Defense counsel did not object. The court treated the pleadings as amended and found liability on the nondisclosure theory.
A variance requires formal amendment only when the opposing party objects and the court finds prejudice. Under the federal rules, if evidence on an unpleaded issue is introduced without objection, the court treats the pleadings as amended by implied consent.
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Any variance that does not affect substantial rights must be disregarded on appeal. The government bears the burden to show the variance had no reasonable probability of influencing the verdict.
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Yes. When a party presents evidence outside the pleadings and the opponent remains silent, the silence constitutes implied consent to amendment of the pleadings under Rule 15(b)(2).
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…former owner, it is a case of depriving a person of his property without due process of law. In my opinion, this decision is at variance with the long-established practice under the statutes of the States of this Union, is unsound in principle, and, I fear, may be disastrous in its effects. It tends to produce confusion in…