Category Archives: 2016 POSTS



Greetings to all my cold Minnesota friends (cold hands but warm hearts). I’m writing this post from my winter home in Scottsdale, AZ where it’s currently a balmy 66 degrees. (sorry I couldn’t resist). Since writing my last update two months ago, I had tentatively decided to stop blogging and focus my attention on other endeavors. But something changed my mind.

The blog website recently crossed a historic threshold, 100,000 visits! When I started this online training service 3 years ago I never imagined it would ever reach the 100,000th mark. Use of the Resource Library hyperlinks have actually increased over the past year and new followers continue to subscribe to the blog site weekly. In addition to the search feature for all past training updates, the most popular website feature is the Judicial Resource Library with its numerous hyperlinks to various research and reference sites.  

I decided that as long as there is continued use and interest in the blog site I will continue to post. So for this week’s post I return to my 2nd most favorite legal topic: Evidence. 

Several years ago I wrote one of my most popular training updates and cover article for Bench & Bar magazine titled: “Admissibility of Electronic Evidence”. In that article I stated:

Due to the enormous growth in electronic correspondence, electronic writings (also known as e-evidence) have evolved into a fundamental pillar of communication in today’s society. Electronic communications have revolutionized how the world does business, learns about and shares news, and instantly engages with friends and family. Ninety one percent of today’s online adults use some form of electronic communication regularly in their everyday lives.Not surprisingly, various forms of electronic evidence (i.e., e-evidence) are increasingly being used in both civil and criminal litigation.

During trials, judges are often asked to rule on the admissibility of electronic evidence. How the court rules on questions of admissibility could substantially impact the outcome of a civil lawsuit or determine the difference between conviction or acquittal of a defendant. This unique form of evidence typically falls into one of five distinct categories: 1) Website Data; 2) Social Network Communications and Postings; 3) Email; 4) Text Messages; 5) Computer Stored/Generated Documents.

All of  that is still true, but now there are many more social media platforms to consider. For example, Snapchat in particular has become a fertile source of evidence not to be overlooked.

Snapchat is a photo and video messaging app that’s different from other apps in that all photo and video messages on Snapchat (referred to as “snaps”) last for only a short amount of time and then disappear (but contrary to popular belief not permanently).

In his recent post on Technologist, Casey Sullivan explained that because “much of a Snapchat user’s life is captured and transferred through the app, it has become an important source of evidence.”

For example, in July 2016 a man and a woman in Massachusetts were convicted of sexual assault of a 16-year-old after they recorded the attack on Snapchat. Jurors were shown screenshots from the Snapchat video during the trial.

Snapchat’s speed filter, which lets users show how fast they’re going while taking a photo, was used as evidence in a Georgia case involving a high-speed car crash. Plaintiffs sued both the driver and Snapchat, arguing that the speed filter encourages reckless driving and can cause crashes. Snapchat’s speed filter also may have played a role in a car crash that killed three young women.

And in an extremely macabre instance, a teenager from Jeanette, Pennsylvania posted a Snapchat selfie with a murder victim. That Snapchat photo became key evidence against him in his murder trial. Investigators told the Pittsburgh Tribune Review that the picture, screencapped by a recipient and shown to authorities, led to a search of defendant’s home, where police found the murder weapon in the defendants bedroom, a 9mm handgun. The  16-year-old defendant confessed to the murder.

It’s easy to imagine a myriad of cases in which Snapchat can be used as evidence. As Casey Sullivan put it, “[p]ersonal injury lawyers, divorce attorneys, criminal defense attorneys, and more could all benefit from evidence found through Snapchat.”

And the ephemeral nature of pictures on Snapchat isn’t necessarily a problem. Sullivan explains that some Snapchat evidence is retained when users take screenshots of snaps and “Snapchat itself keeps logs of previous snaps.” But even deleted snaps don’t necessarily disappear; digital forensics experts can still pull them from the phone.

Now that you know to look at Snapchat for evidence, what about getting that evidence admitted at trial? For a refresher on how to get social media evidence admitted, including the key hurdle of authentication, read my October 14, 2013 Bench & Bar article on “Admissibility of Electronic Evidence – Focus on Authenticity” or my 2013 training update on Electronic Evidence (13.11). 

Try to stay warm.

Alan F. Pendleton (Former District Court Judge)                                                                             New Email:

Source: CEBblog, SnapChat as Evidence, Julie Brook, October 12, 2016, State Bar of California.

The Depressed Lawyer – Why are so many lawyers so unhappy? (16-07)

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