How to Use an Offer of Proof in Your Workers’ Comp Case

• Feb 01, 2023
• Blog
• Michael Burgis & Associates, P.C

In this video, workers compensation attorney Michael Burgis discusses an offer of proof in California. This is how you can get testimonial evidence into the record at trial without having to give testimony.

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Transcript:

Imagine if you get testimonial evidence into the record at trial without having to give testimony, without having to be put on that hot seat, without all that stress and anxiety. It’s called an offer of proof.

Hi, my name is Michael Burgess. I’m a certified legal specialist in California workers compensation and I’m a trial attorney.

How to Make an Offer of Proof

What an offer of proof is, is essentially a piece of paper where you write in, ‘if my client were called to testify, this is what they would say.’ And you handwrite every good fact and testimony you want and you read it to the record.

Why would a defense allow this? Well, the truth is, if I were the defense, I would never allow it. However, I’ve done this on numerous occasions, successfully. And really, the way I’ve been able to accomplish this is when I have an injured worker who is very disabled and testimony will be very difficult. So, essentially what I say is, ‘Hey Court, hey defense attorney, we can be here for a week—8, 10, 12 hours a day—whatever it takes for me to get these facts into evidence. Or, we could spend five minutes and do it now’.

And I’ve found very often that judges will always be willing to take an offer of proof because it speeds up the trial. And sometimes the defense attorney knows that it’s going to get into evidence regardless, why not speed it up and shorten the trial. After all, that’ll save expenses to the defendant on attorney fees.

Offer of Proof: Case Examples

Now, let me go over a few cases where I’ve done this recently, and how important and impactful it was. I had a stroke case, where my client was so disabled that it was very difficult for him to testify. And that testifying would cause increased blood pressure and could be a further risk for him. And I was able to get every good fact and evidence as an offer of proof.

And in this case, I was dealing with a blood clot, and the crux to linking that case was to argue that he was a paramedic and sat for a prolonged period of time. So, I literally read an evidence, ‘applicant sits for a prolonged period of time’. Because the defense allowed that offer of proof in, and there was no objection to it, it is fact. You can’t even dispute the credibility. And I won because of that.

Today, I had a client that was virtually deaf, elderly, and had very difficult times even reading and responding. And because of that, and that difficulty, I was able to do an offer of proof. Put every fact I wanted into evidence, and what I needed to get into evidence, because he’s a waiter, was that he got substantially more than his base salary and tips. Offer of proof, in. Defense can object. Guess what? That’s a fact.

So, an offer of proof is a very clever way that you can get testimonial evidence into the record without the stress of having to give testimony. There are also some other ways to get testimonial evidence in through depositions, if you were deposed, and you can potentially show your unavailability, you can get that in.

Help for Your Workers Compensation Case

If you have any questions or concerns about how to win your case at trial, without having to be

in that hot seat and give testimony, give us a call. We’re standing by and we have the answers and we’re here to help.