Education_-_2nd_Place

The “Rule of Primacy”, The Cornerstone to Effective Trial Advocacy: Plus Some Bonus Acting Tips

rule-of-primacy

RULE OF PRIMACY: Following the “Rule of Primacy” is one of the easiest (yet most overlooked) ways for attorneys to improve their trial performance. If you’re a young attorney with aspirations of becoming the next Clarence Darrow you need to know and follow this rule (all great trial attorneys do). If you’re a presiding judge who believes in the value of mentoring young attorneys, the “Rule of Primacy” should be at the top of your constructive critique list to share with attorneys following a jury trial. So, what is the “Rule of Primacy”?

The most important concept to remember in organizing your statements to the jury, whether during opening statement or closing argument, is the “Rule of Primacy:” Jurors tend to believe what they hear first and most frequently.

What someone believes first is hard to change or dislodge. That’s why going first gives the prosecution in a criminal case or the plaintiff in a civil case a distinct advantage.

But regardless of whether you speak first to the jury, you can use these “Rule of Primacy” techniques to get them on your side:

Take advantage of your opening. The opening statement is made when jurors usually are the most attentive. Using a clear theme and reinforcing it with strong language chosen to produce a specific perception in the minds of jurors can help you persuade jurors even before presentation of the evidence. If a plaintiff gives a compelling opening statement, it’s absolutely imperative that the defense’s opening statement eliminate or minimize the effect of the rule of primacy. The task is made somewhat easier by the fact that jurors tend to forget much of what’s said to them. The defense opening should take advantage of the fact that what people do remember is what they hear at the beginning and end of a presentation.

Tell them what you are going to tell them; tell them; and then tell them what you’ve told them. This presentation organization is used by teachers with students and preachers with congregations. The trial format itself echoes these principles. The opening statement provides the first opportunity to “tell them what you are going to tell them.” Then, when you present the evidence, you do “tell them.” Finally, in closing argument, you “tell them what you’ve told them.”

Use opportunities for repetition when you get them. The opening statement and the closing argument should be used as vehicles for repetition. The use of repetition, along with strong, confident language selected for its most favorable emotional appeal, can be an extremely effective way to reinforce a party’s perspective in the eyes of the jurors. This is especially true when the same theories, facts, and phrases are used in the opening statement and closing argument. Jurors tend to remember and believe what they hear most often.

BONUS ACTING TIPS: Many years ago I took an acting class specifically designed for trial attorneys. During that class they stressed the importance of several simple yet effective techniques designed to help jurors remember key points raised during your opening statement and closing arguments. 

When presenting your opening statement or closing argument one of the WORST things you can do is plant yourself in one spot never moving more than 2 or 3 feet in any direction from your podium or your self-imposed spot on the floor.  REMEMBER: When preparing for trial you literally become the producer, writer, director, choreographer and actor of your own play. For purposes of this article I am focusing on your role as the “choreographer”. 

During a jury trial, the “WELL” section of the courtroom (the area in the center of the courtroom surrounded by the jury box, judge, witness stand and attorney tables) should be viewed as your performance stage, this is your moment in the sun, your moment of truth, this is where many close cases are won or lost…..YOU NEED TO USE AND MASTER THIS AREA – YOUR STAGE! But how? The answer is simple – you need to MOVE YOUR ASS. Use the space you have been given. Take advantage of every tool at your disposal. Don’t be a talking head…MOVE, MOVE, MOVE, but move with purpose and design. In other words, during your opening statement and/or closing argument, you must learn to choreograph your every move. FOR EXAMPLE:

1. FOCUS ON WITNESS: To highlight the testimony of a credible young sex abuse victim, you could walk to the witness stand where the young child sat while cringing with fear and embarrassment, and retell her story from that exact same spot (whether you stand by the witness chair or decide to sit in the chair is a matter of personal preference, and yes, there is no rule that says you can’t sit in the witness chair during portions of your summation). From the jurors perspective, your actions will automatically trigger powerful memories of the young child’s appearance and testimony. Or, for the defense, if the child victim was NOT credible or sympathetic, you could use the same technique to highlight the glaring inconsistencies brought out during your masterful cross-examination. 

2. FOCUS ON DEFENDANT: When you get to the part of your oratory masterpiece where you want to highlight some despicable act of the defendant, a key piece of evidence pointing to guilt, or perhaps his/her confession or incriminating statement, you could walk to where the defendant is sitting and dramatically point or gesture toward him/her. How physically close you get to the defendant and how far you go with the pointing or gesturing will depend on how aggressive you want to be and how far your judge will let you go. Or, for the defense, if you have a credible and sympathetic client, you can use this same technique to personalize your client by walking over to and gently placing your hands on his/her shoulders while you highlight  how horribly unfair the system has treated him/her.

3. THE KEY IS TO MOVE: There are a million variations to this theme….the point is to choreograph your opening and closings so that you make use of the courtroom stage. You accomplish that by moving and knowing exactly where in the courtroom you want to be standing (and why) when highlighting certain facts. Your presentation will be far more interesting and thus more effective and persuasive to the jury.

4. JURORS REMEMBERING MULTIPLE POINTS: Finally, what is the most effective way to maximize juror retention when you have 3 or 4 critically important facts you need the jurors to remember? Our brains are taught from an early age to read and retain information from left to right.                                                                                

When your about to discuss your first important point pick a spot to the right of the jury box (this is to your right – for jurors it will be to their left). Stay in that general area while discussing that first point.        

When your ready to move on to point two, move your spot a little to your left (which is the jurors right, the direction in which they read) and discuss your second point.

For your third point move to a spot a little further to your left (the jurors right), etc and etc. Jurors are watching and listening to your multiple points in the same direction that they would read a book. This provides mental separation between multiple points and allows jurors to subconsciously put a place holder of sorts on each point allowing for easy recall during the deliberation process.

Based on countless post-trial discussions I have had with jurors following the return of verdict, both as a judge and during my years as a prosecutor, I can tell you with absolute certainty that these simple techniques work.

You are limited only by the lack of your own imagination and willingness to move beyond your comfort zone. 

January 15, 2017

Alan F. Pendleton (Former District Court Judge), 763-498-1508; afpendleton@gmail.com

Source: CEBblog, Rule of Primacy, Julie Brook, January 13, 2017, State Bar of California.

SNAPCHAT AS EVIDENCE: THE SMOKING GUN OFTEN OVERLOOKED

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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: afpendleton@gmail.com

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

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

alan.pendleton@mnlegalupdates.com

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

 

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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)

Alan.pendleton@mnlegalupdates.com

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. 

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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?

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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.

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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.

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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.

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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

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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)

alan.pendleton@mnlegalupdates.com