Category Archives: 2017 POSTS



Have you ever felt down and out; like life itself was falling from you and it seemed like a major effort just to take care of the everyday mundane things?  Of course you have, it’s called being human.

No one person that I have ever encountered has been perfect (except Mike Brandt comes pretty damn close).  We all have set-backs, challenges and days where nothing seems to go right; it is a part of life and living. So today, instead of addressing a legal or evidentiary topic, I am going to share a concept with you that can literally change your outlook on life as it illuminates your path to happiness and well-being.  That one concept, among many, is gratitude.

Now I know what some of you are thinking. Half of everyone reading this post is probably groaning to themselves, urgggg…. another touchy feely topic. But not so fast, the power of gratitude is much more than just a touchy feely concept. The physical and emotional benefits that flow from expressions of gratitude are well supported by science. So for all of you logic based non-believers let’s talk a little science.

The science of Gratitude

One of the main features of gratitude is that it can help you feel more connected, relaxed and optimistic. When you express gratitude some pretty amazing things happen inside your brain. For example, neurotransmitters and brain chemicals are released like dopamine, beta endorphins and the love drug oxytocin.  All of these cause you to experience greater well-being, higher self-esteem and a general sense that everything is going to be OK despite the issues at play in that moment.

When you express genuine gratitude, your system is more resilient and robust.  When in the state of being grateful your ventral vegus nerve becomes activated and your ventral vegal tone is made stronger as evidenced by your heart rate variability increasing, which has a direct impact on your cardio vascular health.  The vegus nerves are part of your parasympathetic nervous system; which are part of your Autonomic Nervous System that takes care of so many of the involuntary and critical parts of our system like beating your heart and controlling breathing. Heartfelt gratitude can activate the ventral vegus nerve, counteracting stress and anxiety and initiating a calm all over your body which promotes a greater sense of social safety.

Prevalence of Gratitude Across Cultures and Spiritual Traditions

Whether you’re into science or not, at the surface level, gratitude can be viewed as a simple tool for successful living. At its core, though, gratitude is really an approach to life or stated more boldly, it is a way of life. All spiritual traditions include gratitude among their highest virtues. For example, here is a quote attributed to Gautama Buddha:

“Let us rise up and be thankful, for if we didn’t learn a lot today, at least we learned a little, and if we didn’t learn a little, at least we didn’t get sick, and if we got sick, at least we didn’t die; so, let us all be thankful.”

Melody Beattie wrote in her book, Codependence No More, “Gratitude unlocks the fullness of life. It turns what we have into enough, and more. It turns denial into acceptance, chaos to order, confusion to clarity. It can turn a meal into a feast, a house into a home, a stranger into a friend. Gratitude makes sense of our past, brings peace for today, and creates a vision for tomorrow.”

Gratitude and the Practice of Law

As a prior trial attorney and judge, I always tried to champion the primary importance of psychology in trial practice. Being in the proper mental state is a skill central to all successful attorneys. Gratitude opens the heart and mind, putting you in a position of patience and acceptance.  Patience, as in methodical step by step trial preparation; and acceptance, as in the ability to accept a trial verdict or judicial decision that you did not want, are both paramount in the life of a legal practitioner. If you approach each trial (or anything else in life) with a grateful attitude, you put yourself in the best possible mental state to effectively present and argue your case.

An Easy Choice

Every day when you wake up you have a fundamentally important choice to make between two possible daily mindsets:

  1. A mindset where you are grateful for the opportunity to excel in a challenging field and happy just to be involved, or
  2. A mindset of struggling and griping about every inch of gained ground, never satisfied with the outcome.

When you read those two choices, no one would consciously pick the second one. Yet when the bell rings and your day begins, many attorneys (and judges) allow themselves to revert to an adversarial mental state (choice #2). Besides the negative affect on the quality of your own life, a non grateful daily attitude also has a profound impact on how you are perceived by others, including your friends and colleagues. Of course, most of you already know which local attorneys and judges fall into that second category. Don’t be one of them.

Final Thoughts

As you return to work following the Christmas holidays, take some time to give thanks for your many blessings, regardless of where you live or practice. And then, make a concerted effort to carry that grateful attitude with you to the courthouse or wherever else you work. You will be pleasantly surprised by how such a small change in approach can make your journey more enjoyable and productive, for both yourself and those around you!

Happy New Year,

Alan F. Pendleton (Former District Court Judge)


December 25, 2017

References: Dr. M. Woodruff Johnson is the former Executive Director of the Kaiser Permanente, Watts Counseling and Learning Center. He holds certifications in Accelerated Learning, Neurosensory Development and hypnotherapy, and he is a Certified NLP Master Practitioner. Dr. Johnson is also an Associate Professor and teaches graduate psychology courses at Pacific Oaks College and Ryokan College; D.R. Barton, Jr. at

CRIMINAL JURY TRIAL JUDGES MANUAL “A Step by Step Guide From the Beginning of Trial Thru the Return of Verdict”

Criminal Jury Trial Manual photo

In 2013 I published a Criminal Jury Trial Manual for Judges and Attorneys that covered every step of a Jury Trial from the pre-trial conference thru the return of verdict. It serves a dual purpose. For judges it serves as a step-by-step script that they can follow throughout the entire trial. For attorneys it serves as a trial reference guide and a reminder of key procedural issues that every trial attorney should know (but so many tend to forget or overlook.)  Whether you use the manual as a script or as a reference guide, following the recommended steps greatly reduces the risk of judge or attorney committing a costly mistake resulting in a mistrial or reversal on appeal. 

Back in 2013 copies of the manual were distributed to every District Court Judge, all 87 County Attorneys Offices, all 10 Judicial District Public Defender Offices, the Minnesota Supreme Court, the Court of Appeals, and dozens of private law firms and law libraries.

Even though a copy of the manual can be found on this Blog site, over the past year I have received so many requests for additional copies that I’ve decided to redistribute the manual via this post.

COPYRIGHT PERMISSION: Although the manual is copyrighted this post is your permission to download and distribute the manual to anyone you think might find it helpful. Click on link at bottom of this post.

For those unfamiliar with the manual, below is a copy of the Table of Contents.

(I) PRE-TRIAL CHECKLIST (IN CHAMBERS) ……………………………………………5
     15. EXHIBITS
II. START OF TRIAL AND VOIR DIRE…………………………………………………….20
         a) Questions asked by the Court (23)
         b) Exercise of Preemptory Strikes (28)
         c) Cautionary Recess Instruction (29)
         d) Administration of Oath to Selected Jurors (30)
IX. RETURN OF VERDICT…………………………………………………………………..47

The Manual can be viewed and downloaded by clicking on this link:

Alan F. Pendleton, Former District Court Judge,; 763-498-1508




Attorneys, judges and jurors all want to see themselves as fair, equitable, and rational, yet studies show that despite our best intentions none of us are free from bias. Implicit bias refers to unconsciously held biases that do not necessarily reflect our conscious beliefs.

Because implicit bias is subconscious, even people who consciously abhor discrimination can unconsciously be influenced by implicit bias. Studies show that implicit bias can affect how judges make decisions, how attorneys decide who to leave on juries and how jurors decide what testimony to believe or disregard.

The impact of implicit bias on decision making has been shown in numerous studies. For example:

  • Researchers sent identical resumes to employers and found a 50% drop in interview callback rates for the applicants when they changed the names on the resumes from Emily and Greg (signaling European ancestry) to Lakisha and Jamal (signaling African ancestry).
  • Study participants shown photos of black and white American men with neutral facial expressions perceived the black face to be more hostile than the white face, and the participant’s implicit bias as measured by the IAT correlated to the degree of hostility the participant perceived.
  • Partners reviewing the identical third-year associate memorandum rated the memorandum higher and found fewer errors when the associate was identified as white than black.

The important takeaway is not that implicit bias is bad or that people who have bias are bad people. We all have bias. Part of our job as trial attorneys and judges is to recognize and address racial justice issues whenever and wherever they arise.

For example, within the context of a jury trial, it is critically important to recognize the role that implicit racial bias may play within the minds of otherwise well intentioned jurors. But how do you uncover from someone a subconscious (implied) bias that the person’s conscious mind does not recognize or even realize exists. As Justice Sotamayor wrote: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race….”

The following are suggestions on how to introduce the issue of implicit racial bias to prospective jurors along with 15 carefully crafted voir dire questions.


During voir dire you have the right to question jurors concerning their beliefs and attitudes on race and racial bias. Start with introducing the issue of racial bias to the jurors and then try to get them to talk about it. Make sure to link questions about race to your case. The following statement to the jury panel and sample voir dire questions are a good starting point.

NOTE: Some attorneys may prefer to have the judge address the issue of racial bias with the jury panel by asking all or some of the following race related questions. All voir dire issues (including the racial bias statement below) should be discussed with the judge during your pretrial conference prior to commencement of trial.

INTRODUCING THE ISSUE OF RACIAL BIAS TO THE JURY PANEL: Ladies and gentlemen, despite the many differences in our lives and backgrounds, we all want to see ourselves as fair, equitable, and rational human beings, yet studies show that despite our best intentions none of us are free from bias. Implicit racial bias refers to unconsciously held biases that do not necessarily reflect our conscious beliefs. Because implicit bias is subconscious, even people who consciously abhor discrimination can unconsciously be influenced by implicit bias. Implicit bias is developed over the course of a lifetime through exposure to direct and indirect messages. Studies show that implicit bias can affect how we all make important decisions in our lives. Please keep that in mind as you answer the following questions

(Note: the following questions can also be found in the voir dire section of the Criminal Jury Trial Judges Manual):

  1. Please tell us the type of contacts you have had with Blacks/Asians/Native Americans/Hispanics
  2. Do you work with any Blacks/ Natives Americans/ Asians?
    1. Describe work setting i.e. large factory small office
    2. If so, do you socialize with them at work? Coffee breaks, lunch?
    3. Socialize with them outside of work? If so, types of activities?
    4. Have they been in your home? Have you been in their home?
  3. Do you have kids? Are they in school?
  4. Are your kid’s friends with any Blacks/Native Americans/ Asians in school?
  5. Have your kids’ minority friends ever been in your house?
  6. Have your kids ever been in their minority friend’s home?
  7. Do Blacks/ Native Americans/ Asians live in your neighborhood?
  8. Do you have any contact with them?
    1. Describe?
    2. Ever been in their house? They ever been in your house?
    3. Do your kids have any contact with them? Do their kids have any contact with you?
    4. Are you friends with them?
    5. Are their kids & your kids friends?
  9. Any Blacks/ Native Americans/ Asians in your church?
    1. If so, describe types of contacts you have with them?
  10. When you were growing up were there any Blacks/ Native Americans/ Asians in your neighborhood?
    1. What kind of relationship did you have with them?
    2. Describe activities you would do with them?
    3. They ever in your home? You ever in their home?
  11. Ever date Black/ Native American/ Asian?
    1. If yes, how did your parents feel about that?
  12. Have your children ever dated Black/ Native American/ Asian?
    1. If yes, how did you feel about that?
    2. If no, how would you feel about your child dating a Black/ Native American/ Asian?
  13. Have you or anyone close to you ever been the victim of a crime?
    1. Do you know the race/ethnicity of the person who committed that crime?
    2. If yes, is there anything about the race of the person who committed that crime that would make it difficult for you to be a juror in this case?
  14. Race can have no part in your deliberation and decision on the guilt or innocence of the Defendant. Do you understand and agree with that?
  15. Is there anything about the race of the Defendant in this case that would make it difficult for you to be a juror in this case?

JURY TRIAL REFERENCE TOOLS: For a “Complete Step-By-Step Guide from the Beginning of Trial through the Return of Verdict” go to the Criminal Jury Trial Judges Manual. If during voir dire the state or defense makes a peremptory strike on the basis of race or gender, every trial attorney (and judge) MUST be familiar with the 3 step BATSON challenge process. See Judicial Training Update “Jury Selection ‘Batson’ Challenge”. To access all past judicial training updates and the Judicial Resource Library, go to the Minnesota Judicial Training & Education Blog.   

IMPLICIT BIAS TEST: The most widely recognized test of implicit bias is the Implicit Association Test (IAT) conducted by Project Implicit a research website operated by Harvard University, Washington University, and the University of Virginia.

September 24, 2017

Alan F. Pendleton (Former District Court Judge)




PERSONAL UPDATE: I woke up this morning realizing that it had been 6 months since my last post. One of the drawbacks to the aging process is that time seems to pass so much faster than when we were younger. I am now a legal resident of North Scottsdale, Arizona but we will continue to spend summers and fall in Minnesota. We just completed construction on a new home way out in Minnestrista (for those of you geographically challenged) Minnestrista is a picturesque small town located on the western edge of lake Minnetonka. Now that the dust has started to settle I will hopefully get back to posting on a more regular basis. If you need to reach me I have a new email:  As for this week’s post:

Whether you work in a private law firm, city or county Attorneys office, public defenders office, or as a judicial law clerk, someone at your place of employment has responsibility for hiring and firing new attorneys.

Over my 36 year legal career I have worked in all of the above settings (except not as a public defender). I can tell you from personal experience that when management attorneys meet to discuss business, the subject often turns to common mistakes made by new attorneys. This is a topic I wish law schools would spend more time covering with their recent graduates. 

The following is a list of ten typical mistakes to avoid when you’re trying to get your legal career off to a great start.

MENTORING SUGGESTION: If you are an older more experienced attorney I encourage you to share this post with any new attorneys in your firm or office.

  1. Know your place. If you’re the newest lawyer in your firm/office, others with more seniority and experience expect a certain level of respect. Being arrogant, self-righteous, or correcting senior counsel publicly will make your opinions less favored than using a respectful and thoughtful approach. You’re expected, at least initially, to prove that you can work harder and longer hours to prove yourself. Complaining about the work load, taking long lunches, and expecting to have a hand in deciding what cases you’ll work on will appear overreaching and unappreciative. Perks will come with time and experience.
  2. Don’t be afraid to ask for input. Few new attorneys ever ask for input or ask how their work can be improved. This is probably because they don’t really want to receive feedback on these issues for fear of being criticized. However, it shows initiative and maturity to ask how you can improve. Also, if you want advice on how to approach a legal task, it’s often helpful to approach your supervisor early with a plan as to how you will attack the legal problem. It’s better to find out if you’re on the right or wrong track early than to waste time doing something the wrong way. The fact that you’re trying to improve is impressive in itself.
  3. Write a handwritten note. Hardly anyone thinks to write a thoughtful, handwritten note to show appreciation for a kind gesture. Before texts and emails, we actually owned pens and stationery! A nicely written note will earn you major points with both supervisors and clients. Electronic communications can seem impersonal and may get buried in the email morass of the recipient’s inbox. (this is my personal favorite!)
  4. Listen more than you talk. When you’re a new lawyer, there’s a tendency to talk too much and listen too little because you’re trying to impress clients and/or colleagues. However, a good lawyer listens to the client and their issues, concerns, and problems and then asks appropriate follow-up questions before offering legal advice. Learn to be a good listener early on in your career and your clients will appreciate you for it. When dealing with more experienced attorneys in your firm/office your rule of thumb should be “ask them questions, listen, learn from them and then thank them.”  Developing your active listening skills will also help you with negotiations (civil or criminal).
  5. Have empathy. Clients (and victims for prosecutors) are often frightened by being involved in the legal process and may feel very violated. They’re coming to you for legal advice, but showing compassion, being a good listener, and treating them with respect can earn you a client for life .  Many people don’t think that lawyers care about the outcome of the legal issue—do what you can to change this perception of lawyers and you’ll help the profession, and yourself, in the process.
  6. Learn to proofread. Read and reread everything you draft. And always even though you draft it electronically, print your legal work and review it thoroughly before signing it. Doing this helps you catch formatting errors, written mistakes, and less than stellar analysis. Keep it formal; too many young lawyers inappropriately use a casual, unprofessional tone (i.e., “the defendant acted like a Mafia Don”) and colloquialisms or slang. By submitting a technically perfect document, you can set yourself apart from others and enhance the possibilities for future successes. Judges can be especially critical of attorneys that submit sub-par filings.
  7. Get all agreements in writing. Handshake deals aren’t the way we practice law. No matter how friendly your relationship is with opposing counsel, all agreements should be confirmed in writing. For example, if opposing counsel tells you on the phone that he or she will drop a cause of action from the complaint, get it in writing so you aren’t left without recourse if he or she reneges. And if much of your confirmation writings are in email, make sure to have a system for storing these agreements or print them out for future use. This is expecially important when reaching plea deals in criminal cases.
  8. Don’t expect law clerks and Google to tell you how to practice law. Law clerks hate calls from lawyers who try to use them as a reference instead of doing their own independent research. And you don’t want to irritate the clerk. Also, be aware that a search on Google or another online search engine doesn’t replace actual legal research, and any samples you obtain through such a search should be thoroughly researched to make sure the law cited is correct, recent, and relevant. Also, when researching, always read the entire case. Don’t depend on a summary and canned holding that may not be on point with your own case. Remember, if you annoy or agitate a law clerk the judge is sure to hear about it.
  9. For private attorneys, understand what it means to provide client value. Your work, every minute of it, is ultimately billed to a client, and you should think about how the bill will look from the client’s perspective. Keep up with your timesheets on client matters on a daily basis. Your firm and the clients will benefit from your accuracy and value your efficiency. Provide detailed billing so that you can always justify your time and don’t do secretarial work that can be billed by someone else at a lower rate.
  10. Use your tech skills. Younger attorneys are usually proficient at using computer programs, social media, and other technologies. Offer to assist your firm/office with existing skills to add value to the organization while demonstrating your own value. It will take a while to develop legal skills, so why not capitalize on skills you already have in the meantime?

July 24, 2017

Alan F. Pendleton (Former District Court Judge)

Source: CEBblog, California Continuing Legal Education. Anabella Q. Bonfa, Wellman & Warren LLP, and Diane Rifkin, Rifkin Consulting.

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


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;

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