The Depressed Lawyer – Why are so many lawyers so unhappy?

sad-unhappy-lawyer-attorney-biglaw-associate-depressedThe following post is a reprint of a May 2, 2011 “Psychology Today” article written by Tyger Latham, Psy.D., a licensed clinical psychologist practicing in Washington, DC.  He counsels individuals and couples, many of whom are attorneys. As you read thru this post many attorneys and judges will feel like this article was written about them.  

PERSONAL NOTE: I choose thus topic because it was not until I left the practice of law before truly realizing how rich and rewarding life could be IF AND ONLY IF we learn how to take back control of our lives (and I mean really take control). This short article provides a 10-step process on how to better manage your workplace stress and in doing so take more control over your life. Don’t wait until you retire, like I did, before coming to that realization and then doing something about it.

It is estimated that approximately one out of every 10 people in Washington, DC is a lawyer.  Not surprisingly, I’ve seen quite a few lawyers in my practice over the years.  I’m sometimes reminded of what one of my graduate school professors said about the profession:  “As long as there are lawyers,” he joked, “there is always going to be a need for therapists, because the very thing that makes so many lawyers depressed [i.e., practicing law], is the very thing they are unwilling to give up.”  This causality always struck me as a bit simplistic but I think my professor might have been on to something.  Take, for example, the following statistics:

  1. According to an often cited Johns Hopkins University study of more than 100 occupations, researchers found that lawyers lead the nation with the highest incidence of depression.
  2. An ABA Young Lawyers Division survey indicated that 41 percent of female attorneys were unhappy with their jobs.
  3. In 1996, lawyers overtook dentists as the profession with the highest rate of suicide.
  4. The ABA estimates that 15-20 percent of all U.S. lawyers suffer from alcoholism or substance abuse.
  5. Seven in ten lawyers responding to a California Lawyers magazine poll said they would change careers if the opportunity arose.

Although alarming, these statistics are probably not too surprising to those in the profession.  I’ve known and worked with quite a number of lawyers over the years and while I’ve found many to be genuinely happy people, I’ve encountered just as many who are not.  While I wouldn’t say the legal profession is the sole source of all lawyers’ unhappiness, I do think the profession at times contributes, if not precipitates, mental health issues among those in the field.

The Psychological Constitution of the “Typical” Lawyer

In counseling law students and many early career attorneys, I’ve come to recognize some common characteristics among those in the profession.  Most, from my experience, tend to be “Type A’s” (i.e., highly ambitious and over-achieving individuals).  They also have a tendency toward perfectionism, not just in their professional pursuits but in nearly every aspect of their lives.  While this characteristic is not unique to the legal profession – nor is it necessarily a bad thing – when rigidly applied, it can be problematic.  The propensity of many law students and attorneys to be perfectionistic can sometimes impede their ability to be flexible and accommodating, qualities that are important in so many non-legal domains.

The Nature and Practice of Law 

The practice of law is rarely as glamorous as it appears on television.  Few, if any, lawyers I know have the luxury of sitting around and philosophizing about the law, at least not if they want to get paid.  The practice of law can be demanding and exceedingly stressful.  Even the most balanced and well-adjusted lawyer at some point eventually succumbs to the pressures of working in the legal field.  Put an ordinary individual with unresolved issues and inadequate defenses in a hyper-competitive environment such as the law, and you have the formula for a psychological crisis.

All lawyers experience a certain degree of stress and emotional burn-out during their careers.  I’ve had lawyers tell me how helpless and angry they feel at the perceived loss of control that comes with their legal work.  Unless an attorney has made it to the elusive position of “rainmaker,” she or he can expect to spend well over 60 hours a week (not including weekends) being at the beck and call of the managing partners.  As one attorney put it, “I lost control of my schedule while trying to maintain control of my life.”

Another aspect of the law that can be a source of stress for some lawyers is the adversarial nature of the profession itself (6).  Often times winning – regardless of how it is done – is the name of the game.  Lawyers, who want to be successful will often rely on subterfuge, conflict, and distortion to persuade others.  While these skills may be rewarded in law, they can have disastrous consequences when applied to interpersonal relationships.  

There are some lawyers who eventually decide to leave the field, while others remain despite feeling unhappy, demoralized, and trapped.  It is the latter group that can be the most destructive, whether to themselves or others.  The previously cited statistic that nearly one in five attorney suffers from alcohol or substance abuse is certainly in keeping with my clinical experience.  The “impaired attorney” shares a lot in common with the “impaired therapist.”  Both are unwilling (or perhaps unable) to acknowledge their problems and some will “act out” in destructive ways.  Unfortunately, the stigma and secrecy surrounding mental illness will often preempt impaired lawyers from seeking help until it is too late.

Practical Advice for those in the Legal Profession   

While it is beyond the scope of this post to provide an exhaustive list of what impaired lawyers can do to address these types of issues, here are 10 practical tips for lawyers in distress and those who care for them:

  1. Set realistic and obtainable goals based on what you have accomplished and experienced in the past.
  2. Learn to prioritize your life, i.e., focus and put your efforts into action items that are truly important.  Let go of those items that are either insignificant or not time-sensitive.
  3. Recognize that “mistakes” are a part of life, essential, and often present the opportunity for important learning opportunities.
  4. Be cognizant of your emotional barometer and use such information to evaluate whether you are achieving an optimal balance between life, work, and play.  If you are stressed out all of the time, pay attention to that information and make changes that will enable you to reach equilibrium.
  5. Take your mental health seriously.  Consider your mental health to be as important as any other professional obligation.  As with psychologists, impaired attorneys often ignore the early warning signs of mental illness and risk placing themselves as well as others in serious jeopardy.
  6. Seek balance in your life.  Make sure you are taking time to care for yourself so that you can care for your clients.  As with other high-pressure and demanding professions, attorneys who neglect their physical, psychological, spiritual, and interpersonal lives run the risk of making mistakes on the job.
  7. Learn to manage your stress by finding healthy outlets for it.  Whether you manage your stress through exercise, socializing, or channeling your energies into other, non-legal pursuits, be sure to make time for these things.  In fact, schedule them into your calendar and view them as every bit as important as your weekly meeting with the partners. 
  8. Accept that the practice of law is inherently stressful.  While it is important to accept this reality, it is not okay to succumb to it.
  9. Know and take advantage of your personal strengths, while acknowledging, accepting, and minimizing your weaknesses.  No one is perfect and those who assume they are, are not only insufferable to be around but also run the risk of over-extending themselves, failing at their jobs, and potentially disappointing those who count on them.
  10. Remember that true professionals know when to ask for help and delegate responsibility.  Be familiar with the resources available to you – be they personal or professional – and utilize them.  If you feel you are constantly “stressed out,” depressed, or struggling with substance abuse/dependence issues, get professional help immediately.  Just as any psychologist would consult an attorney when addressing legal issues outside of their area of expertise, so too, an attorney should be prepared to consult a mental health worker if s/he feels ill-equipped to address the psychological stressors in her/his life.

FOLLOW-UP POST: In my next post I will share with you a well-known breathing trick guaranteed to reduce stress related to high stress activities, such as starting a trial, going to court and/or having to deal with a particularly unpleasant judge (or visa versa) or before any type of public speaking event, etc.  This simple trick is based on science and really does work. If performed immediately before your stressful event it has the potential to significantly reduce your stress level and increase your level of performance.

References (as noted in the article written by Tyger Latham, Psy.D):

  1. Eaton, W.W. (1990). Occupations and the prevalence of major depressive disorder.Journal of Occupational Medicine, 32 (11), 1079-1087.
  2. Moss, D.C. (Feb., 1991). Lawyer personality. ABA Journal, 34.
  3. Greiner, M. (Sept, 1996). What about me? Texas Bar Journal.
  4. Jones, D. (2001). Career killers. In B.P. Crowley, & M.L. Winick (Eds.). A guide to the basic law practice. Alliance Press, 180-197.
  5. Dolan, M. (June 28, 1995). “Disenchantment growing pervasive among barristers,” Houston Chronicle, 5A.
  6. Braun, S.L. (May/June 1988). Lawyers and mental health. Houston Lawyer.

Alan F. Pendleton (Former District Court Judge) 

October 18, 2016

Question: What is one of the Most Common Mistakes Made by Trial Attorneys When Cross-Examining an Expert Witness?



ANSWER: One of the most common mistakes made by trial attorneys when cross-examining an opposing expert witness is attempting to attack the expert’s opinion directly or head on.

EXPLANATION: During the cross-examination of an expert witness you rarely want to attack the expert witness directly. Your best bet during cross-examination is to use peripheral or tangential ways of assailing the expert’s views. There is, however, one exception to this general rule that I will address at the end of this post.

To understand how indirect/peripheral cross-examination works, consider this example:

You’re questioning the medical doctor who performed an independent medical     examination of your client (the plaintiff) on behalf of the defense. The doctor testifies that your client’s back problems resulted from preexisting arthritic changes rather than from the automobile accident, as you allege.

If you go with direct questions about the doctor’s opinion (e.g., “Doctor, are you sure that the present problems are the result of preexisting arthritic changes?”), this will likely result in the doctor’s merely reiterating the damaging opinion. Similarly, the near-suicidal inquiry, “Doctor, why are you so sure that my client’s present problems are the result of preexisting arthritic changes?” is likely to evoke an otherwise inadmissible dissertation on, e.g., the inevitability of arthritic deterioration and the number of other Americans afflicted with arthritic problems, or a subjective and unsupported opinion that your client is misrepresenting his condition.

By contrast, peripheral cross-examination is more effective because it focuses on:

  • Matters that the witness can’t deny
  • Work that the witness hasn’t performed
  • Work that the witness has performed and must acknowledge to cast doubt on the expert’s qualifications, objectivity, and thoroughness.

For example, here’s how an indirect/peripheral cross-examination of the defense doctor could go:

  1. Doctor, you have seen my client only once in his life, correct?
    1. That’s right.
  2. That one-time visit occurred approximately 8 months ago, correct?
    1. That’s correct.
  3. That one-time visit lasted only 20 minutes, correct?
    1. Approximately, yes.
  4. The views that you have expressed here today are all based on that one-time, 20-minute examination that took place 8 months ago, correct?
    1. Correct
  5. Doctor, you have patients of your own, do you not, as well as injury victims like my client who are referred to you by law firms?
    1. Yes I do.
  6. In treating your own patients, you try to avoid making an irrevocable medical decision based on a single examination whenever possible, right?
    1. That is correct.
  7. Now, Doctor, you are aware that my client had not missed a single day of work, other than for an occasional cold, for more than 5 years before the day of the accident in question?
    1. That’s what I am informed.
  8. Doctor, you are further aware that my client has not worked a single day since his car was rear-ended by the defendant, correct?
    1. That’s correct.
  9. Doctor, this is the eleventh time in the past 10 years that you’ve testified on behalf of _ _[name of counsel for the defendant]_ _ in a personal injury suit, isn’t that correct?
    1. I think that’s about right.
  10. In each of those ten other cases you testified, as you have testified here today, that you believed the plaintiff’s disability was the result of something other than the fault of _ _[name of defense counsel’s client]_ _, isn’t that correct?
    1. That’s correct, and I still feel that way.
  11. Thank you very much, Doctor.

Nowhere in this sequence does the cross-examiner directly attack the witness’s central opinion that the plaintiff’s present problems are due to arthritis instead of the accident. In fact, that opinion is never even mentioned. Instead, the cross-examiner has undermined the credibility of the doctor’s central opinion thru an indirect or peripheral attack on the doctor’s opinion.

EXCEPTION: The cross-examination of an expert witness is one of the most difficult and daunting challenges facing any trial attorney. If you are brave enough to attempt a full frontal attack on the expert’s opinion then you are going to need help. When preparing for the cross-examination of an expert witness one of the most powerful tools available to a trial attorney is the “Learned Treatise” exception to the hearsay rule found in MN Rule of Evidence 803 (18) which states:

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

In every profession there is at least one publication (and usually more) that experts in that field recognize as a reliable authority and would therefore qualify as a “Learned Treatise” under Rule 803 (18). Although the practical application of the “Learned Treatise” rule is beyond the scope of this post, learning how to use this powerful exception during the cross-examination of an expert witness is a skill that every trial attorney should learn. 

Alan F. Pendleton (Former District Court Judge)

Reference: CEBBlog, State Bar of California, Julie Brooks, Sept 16, 2016.

Judge Advises Defendant “You Have a Constitutional Right to be a Dumb-Ass.” Welcome to the Funniest and Filthiest Court Transcript of all time. The Following is an Excellent Example of a Judge Doing Almost Everything Wrong When Dealing with a Disruptive Defendant.

Thank God this happened in Georgia and not Minnesota.

Although I have a great deal of empathy for judges that have to deal with disruptive defendants, the following exchange between Judge and defendant is a glaring example of what can happen when a judge fails to maintain a sense of order and integrity in his/her courtroom.  The end result is a ridiculous courtroom incident creating the perception of a judicial system with “out of control” courtrooms, run by “out of control” judges incapable of dealing with “out of control” defendants in a professional manner.   

As you read and/or listen to the following outrageous courtroom exchange, ask yourself this question:

In order to maintain control in the courtroom and a sense of judicial dignity, at what  point in the following exchange should the judge have STOPPED engaging the defendant, entered a finding of contempt and immediately ordered removal of defendant from the courtroom? First, a little background:

On June 20, 20126, alleged murderer Denver Allen and the Honorable Judge Bryant Durham decided to act out a more profane version of that scene between Principal Vernon and John Bender from one of my all time favorite movies, “The Breakfast Club” in a Georgia Courtroom.

Defendant Allen, accused of committing a deadly jailhouse assault last year, appeared in court seeking to represent himself, claiming his public defender said he would only do “a good job” if he was allowed to give Defendant Allen oral sex. Judge Durham advised him against it. Things quickly went downhill from there. 




The prospect of spending significant time in contempt of court didn’t deter Defendant Allen from demanding that the judge suck his “donkey” dick. They say that the most dangerous man is one with nothing less to lose. Allen is already going on trial for killing a man, what’s contempt of court on top of a lengthy prison sentence?


According to the official court transcript what followed was a lengthy exchange in which Allen bragged about his “big old donkey dick” and his fondness for “white boys with big butts” while repeatedly commanding Judge Durham to suck said donkey dick.


In return, an alternately smiling and red-faced Judge Durham said Allen “looked like a queer” and speculated that “everybody [must enjoy] sucking your cock” but insisted his mouth was likely too small to accommodate the suspected killer’s penis.


During one particularly surreal moment, Defendant Allen asked the court reporter if she was getting everything down after Judge Durham repeatedly dares Defendant Allen to jerk off right in the courtroom.


At this point, the Judge decides to tell defendant Allen that he has a “constitutional right to be a dumb-ass,” and that’s when  Allen goes even further to the dark side and threatens to kill the judge, his whole family, and chop his children into bits.dumbass


THE TRANSCRIPT: While painfully homophobic at times and incredibly vulgar throughout, a complete reading of the entire 19 page comedy routine deserves a read. Check it out here.

THE COMIC-CON ANIMATED VIDEO: The above exchange between Judge Durham and Defendant Allen went viral and became an instant internet sensation. Judge Durham was nicknamed “Judge Fuckman Ass”, and Defendant Allen became “Donkey Dick Defendant”.  What happened in court was so wildly unbelievable and yet somehow completely true, that the creator of the popular Adult Swim show “Rick & Morty” animated and voiced the entire transcript in character as Rick and Morty. The whole thing was premiered last month at the 2016 San Diego Comic-Con and received raving reviews. Click Here to watch the video clip. 

JUDICIAL TRAINING: Although I’m sure Judge Durham is mortified at his new-found internet fame, the inescapable fact is that all judges, at some point in their judicial career, will face a defendant hell-bent on making a mockery of the proceedings. The only difference is the manner in which the presiding judge chooses to respond. My hope is that this blog post will serve as a training springboard and catalyst for judicial discussions on how to best answer the question that was asked at the beginnng of this post: 

In order to maintain control in the courtroom and a sense of judicial dignity, at what  point in the above exchange should the judge have STOPPED engaging the defendant, entered a finding of contempt and immediately ordered removal of defendant from the courtroom? 

NOTE: By all accounts, other than this unfortunate incident, Judge Durham had a reputation as a well liked and respected jurist. In other words, if something like this can happened to a Judge Durham, then on any given bad day it could perhaps happen to you.

Alan F. Pendleton (Former District Court Judge)



Blog Update:  If you are getting this blog post via email please note that clicking on the Blog post title (above in blue) will take you to the full blog website containing all past training updates and the one stop “Judicial Resource Library”.

Question: In a jury trial how can you tell if your presiding judge is inexperienced, incompetent, simply lazy, or perhaps some combination of all three?

Answer: In order to give this answer the attention it deserves, you must first  understand the main difference between what an attorney does during trial and what a judge does?

  1. Trial attorneys TRY cases;
  2. Presiding judges MANAGE cases (and no matter how much a judge may want to meddle, never shall the two cross)

All trials (jury, court, criminal, civil, family, juvenile, etc) are incredibly serious business. They represent the culmination of months of hard work for the attorneys; the moment defendants, victims and litigants finally get their day in court and perhaps most important, the right to trial forms the cornerstone to our entire system of justice. And one person is given the awesome responsibility to manage and safeguard that constitutional right — the presiding trial judge.

Show me a trial that is plagued with problems and  numerous  delays, and I will show you a presiding judge that has failed to properly manage that trial. Although some judges routinely blame unexpected problems and delays on the attorneys, truth be told, invariably the root cause is a judicial failure to properly manage the trial. Failure to properly manage a trial is usually the result of failing to conduct a meaningful pretrial management conference immediately prior to commencement of trial. The purpose for a pretrial management conference is to discuss substantive, procedural, evidentiary and other trial management issues.

In order for a judge to properly manage a trial (especially jury trials) it is imperative that he/she conduct a pretrial management conference with both attorneys immediately prior to commencement of trial. Whether the judge handles this pretrial conference in a formal or informal manner is a matter of personal style – as long as key rulings or decisions are, at some point, put on the record outside the hearing of the jury but in the presence of the defendant/parties. 

CIVIL TRIALS: When presiding over civil trials Title 2, Part H of the “General Rules of Practice – Minnesota Civil Trial Book”  identifies the specific issues that should be addressed at the pretrial conference.

CRIMINAL TRIALS: When presiding over criminal trials (misdemeanor or felony) I suggest the use of a Criminal Pretrial Checklist. This checklist covers approximately 2o substantive, procedural and evidentiary topics that should be discussed prior to commencement of trial. I guarantee that following this checklist will significantly reduce the number of unexpected problems and delays during your trial and will greatly enhance the presiding judge’s ability to properly manage the trial.  

For a copy of the full pretrial checklist with rules, statutory and case citations, see Chapter 1 of the “CRIMINAL JURY TRIAL JUDGE’S HANDBOOK” (A Step by Step Guide From the Beginning of Trial Through the Return of Verdict). There is also a direct link to the Handbook under the “Training & Trial Manual” section of the “Judicial Resource Library” on the Blog website. Below is a summary of the Checklist topics:




  1. Lets attorneys know that you are prepared and that you expect them to be prepared;
  2. Establishes judicial control and your expectation that the trial will be conducted efficiently and fairly with minimal delays or disruptions;
  3. Establishes judicial credibility, allows you to set the rules for trial and your expectations of the attorneys;
  4. Identify potential problem areas so you can start preparing for them before they actually become problems;
  5. Using the Checklist can reduce the risk of appeals or remands;

A note for the inexperienced trial judge: If you are new to the bench, I cannot emphasis enough the importance of developing good trial management skills. Learning how to manage a jury trial is quite different from trying a jury trial. They involve two very different mindsets. Just because you were good at one doesn’t mean you’ll be good at the other. Eventually you will develop your own trial management handbook. But until that day, I suggest you use the CRIMINAL JURY TRIAL JUDGE’S HANDBOOK  as your starting guide.

Final Disclaimer and Comments on Arrogant Judges: The vast majority of district court judges are excellent trial judges and do not fall into any of the above categories. However, as in most professions, there is a small number of judges that do fall into at least one of those categories. Being inexperienced is ok, being incompetent, lazy or arrogant is not. The sad truth is that many attorneys (and judges) already know which judges are incompetent, lazy or arrogant but believe there isn’t much they can do about it….or is there?  I plan on discussing the topic of arrogant judges and what options are available to attorneys in future posts. 

Title of next week’s blog post is: “How Does a Good Judge Turn Into a Bad Judge and What is the Best Way for Attorneys to Handle a Bad Judge”

Alan F. Pendleton (Former District Court Judge)



BUT FIRST A NOTE ABOUT THE “JUDICIAL RESOURCE LIBRARY”: If you are getting this blog post via email please note that clicking on the above title (should be blue in the email) will take you to the blog website containing all past training updates and the “Judicial Resource Library”. The Judicial Resource Library is designed to be a simple one-click research site for judges and attorneys with hyperlinks to numerous legal research and reference sites, including but not limited to:

  1. State and Federal Legal Search Engines;
  2. Minnesota State Statutes;
  3. Rules of Criminal, Civil, Family & Juvenile Procedure;
  4. Rules of Evidence;
  5. General Rules of Practice (including all 10 titles);
  6. Minnesota Sentencing Guidelines;
  7. Attorney and Judicial Rules of Ethics;
  8. Payable List for Misdemeanor Offenses;
  9. The full text of the Minnesota and US Constitution;
  10. And, of course, all past Judicial Training Updates;
  11. Click on “Judicial Resource Library” to see if this site can help you. 

FOR ATTORNEYS: If it’s your first trial or it’s been a while since you’ve tried a case, here’s a handy list of 10 steps to take when introducing your evidence at trial.

FOR JUDGES: The procedure for introducing evidence during trial is one of many topics that the presiding judge should discuss with both attorneys during the pretrial management conference. 

STEP 1: Mark your exhibit for identification. The first step in offering an exhibit into evidence is to have it marked for purposes of identification. Once an exhibit is marked, it becomes part of the clerk’s record and can be designated as part of the record on appeal. When you should mark your exhibits varies from court to court? Traditionally the court clerk marked an exhibit when a witness was first to be asked about it. You’ve seen this on old TV shows: while the witness is on the stand, the attorney asks the clerk to mark the item “for purposes of identification,” and then everyone waits while the clerk places an identifying mark on the exhibit and logs it in the clerk’s record. This slow and dull process has led many judges to now require that exhibits be premarked, i.e., marked before trial begins or when court is not in session and before counsel begins questioning the witness. This issue should be addressed during the pretrial conference.

STEP 2: Show your exhibit to opposing counsel. Show the exhibit to opposing counsel when you ask that it be marked for identification. If the exhibit was premarked, show it to opposing counsel before you show it to the witness. This issue should be addressed during the pretrial conference.

STEP 3: Show your exhibit to the judge. If an exhibit was copied, hand the clerk both the original exhibit to be marked and a copy of the exhibit for the judge’s personal use. The process for providing a copy of the exhibit to the judge may differ depending on whether your trial is civil, criminal or family, etc. Many judges have personal preferences and different expectations when it comes to this issue.  You need to know what those are. 

STEP 4: Develop a factual basis for admitting your exhibit into evidence. In order to avoid the proverbial “Objection – lack of foundation”, use methods developed during pretrial preparation to establish the required factual basis supporting admission of the exhibit, e.g. ask the witness questions you’ve prepared for this purpose, ask the court to take judicial notice, rely on prior stipulations or perhaps requests for admissions if they provide the factual basis. Any anticipated admissibility problems should be discussed during the pretrial conference.

STEP 5: Offer your exhibit into evidence. Offer the exhibit into evidence immediately after laying the foundation for introducing it into evidence. It is not unusual for an attorney, after laying proper foundation, to forget to actually offer the exhibit into evidence. “Objection, counsel is asking questions about an item that is NOT in evidence.” It is usually a problem easily fixed but you may look inexperienced in the process. Any anticipated admissibility problems should be discussed during the pretrial conference.

STEP 6: Anticipate and prepare for objections to admitting your evidence. Use an “evidence memo” or other pretrial preparation to show the court that the opposing party’s objection or claim of privilege is without merit. Anticipating objections or other admissibility problems and addressing them during the pretrial conference is critical to effective trial management.

STEP 7: Make an offer of proof. An offer of proof must be made to challenge on appeal a trial court’s exclusion of evidence. Minn. R. Evid. 103(a)(2). The only exception to this rule is if the substance of the excluded evidence is apparent from the context within which the question was asked. An offer of proof is a disclosure, made outside the hearing of the jury, of the substance, purpose, and relevance of evidence the offering party seeks to introduce. The legal reasons to make an offer of proof are threefold:

  • To persuade the judge before a ruling is made to admit the evidence;
  • To persuade the judge after a ruling is made to reconsider the ruling; and
  • To create a record for appeal that the judge was specifically aware of the nature of the evidence being excluded.

I encourage you to read Training Update 15-02 titled: Evidentiary Rulings – Preserving the Record – 5 Rules every Judge (and Attorney) Must Know. 

STEP 8: Obtain a definitive ruling on admissibility. It is not enough to object to evidence or to make an offer of proof. The court MUST make a definitive ruling and the parties have an absolute right to insist on a ruling. It is the responsibility of the party objecting to the evidence to make sure the judge actually rules on the objection. The party making an objection should also be sure that the court reporter is present when the ruling is made or, if not present, that the matter is placed on the record at a later point when the reporter is present. See Training Update 15-02. Failing to make a definitive ruling is usually a sign of judicial inexperience. 

STEP 9: Disclose to the jury the substance of the admitted exhibit. Tell the jurors (thru testimony) about the exhibit admitted in evidence to make them aware of the exhibit’s meaning and importance. I have seen many occasions where following the receipt of an exhibit into evidence there was little or no follow up testimony regarding the exhibit leaving the jurors noticeably dissatisfied.

STEP 10: Verify the recorded admission of exhibits into evidence. Make certain that all proffered exhibits have been formally and unconditionally received into evidence and the clerk’s record reflects their receipt. Verify this by reviewing your exhibit log to ascertain whether the court has admitted all exhibits, comparing your exhibit log with the court clerk’s formal record. You can then re-offer any exhibit for which there is any question (and obtain a definitive ruling).

Note: Always double check to make sure that only properly admitted exhibits are taken back to the jury room for deliberations. I once ordered a mistrial following a verdict of guilty because a copy of the defendants criminal history printout somehow got mixed in with exhibits that went back to the jury room.

TOPIC FOR NEXT WEEKS TRAINING UPDATE – I will answer the following question:

QUESTION: In a jury trial how can you tell if your presiding judge is either inexperienced, incompetent or simply lazy? 

Keep fighting for what you know is right.

Alan F. Pendleton (Former District Court Judge)