JUDICIAL & LEGAL WRITING: The Number #1 Rule For Improvement – CUTTING (20-02)

Thomas Jefferson Verbosity

One of the most common complaints raised by judges regarding written submissions filed by attorneys, guardians, child protection workers (and others), involves an issue that is surprisingly easy to fix .

There is a myriad of publications dedicated to the improvement of legal writing. Unfortunately, you often need an English degree to understand anything past the first paragraph. There is, however, a simple way to dramatically improve any style of legal writing that has nothing to do with dangling participles or misuse of pronouns.

This Training Updates explains how to accomplish that goal.

CLICK HERE FOR A PRINT READY COPY OF UPDATE 20-02

ADMISSIBILITY OF GUARDIAN AD LITEM (GAL) REPORTS: How to overcome hearsay objections (20-01)

Almost every GAL report I have ever read included statements made by the parties as well as the child(ren). Sometimes those statements can be extremely prejudicial, especially those made by young children (many of whom are too young or otherwise unable to testify in court).

Statements such as: “I saw daddy hit mommy in the face” or “daddy touches my privates late at night” or “I get mad at mommy because she leaves me home alone” or “when mommy gets really mad she slaps my face and it hurts”.

Because those type of statements could form the basis for charging a party with a criminal offense, many defense attorneys will vehemently demand those statements be stricken from the report arguing that they constitute inadmissible hearsay.

Whether you are a prosecutor or a Guardian Ad Litem, how do you plan on responding to the hearsay objection? And if you are the presiding judge what legal analysis do you apply to reach a proper ruling?

The attached Training Update answers all those questions and also provides prosecutors and Guardians with a sample in-court script to follow.

Click here for a print ready copy of Update 2020-1

Please feel free to share this update with other prosecutors, guardians or judges that might benefit from it.

BAIL HEARINGS IN FELONY STRANGULATION CASES – SEVEN MEDICAL-PHYSIOLOGICAL FACTS EVERY JUDGE AND ATTORNEY SHOULD KNOW (18-01)

Graphic_Abusers-strangle-to-show-their-victims

I write this post out of a sense of urgent concern. I recently observed an absolutely dismal bail hearing in a FELONY strangulation case presided over by a clueless judge and an uninformed prosecutor. (I will not mention the name of the county, judge or prosecutor).

After the defense attorney made an impassioned “no bail” argument that was filled with blatant misstatements of medical fact it became quite obvious that the judge and prosecutor were painfully ignorant regarding the insidious nature of strangulation. Bail was set at an outrageously low dollar amount and the victim and her family were visibly and justifiably upset.  (The victim looked terrified).

The purpose for re-submitting this training update (originally published in 2014) is to hopefully educate the bench and prosecution of critically important facts that must be considered in every felony strangulation bail hearing. I will go so far as to say that any judge or prosecutor not familiar with the medical/physiological facts outlined in this post has no business presiding over or prosecuting any case involving strangulation. The potential risk to victims are simply too great.

Consider this: A study published in the Journal of Emergency Medicine found that women who survive strangulation by their partner are seven times more likely to be the victim of an attempted homicide and eight times more likely to be the victim of homicide. In other words, strangulation is often one of the last abusive acts committed by a violent domestic partner before murder. 

I have been publishing these judicial training updates for more than 10 years all for a simple singular purpose: the hope of keeping our bench and bar as well-educated on relevant issues as possible. When I was still on the bench virtually every judge in the state received these training updates.

To my dismay, I was recently told that judges no longer receive these training updates because someone high up in the judicial branch ordered an email spam filter that blocks the judicial branch from receiving these updates. I was deeply saddened to hear that and sincerely hope it isn’t true. In the meantime, if you know a judge, especially a newer judge, that you believe could benefit from this update (or anyone else for that matter) please feel free to pass it on. Now, on to the really important facts:

QUESTION: When making bail decisions in Felony Strangulation cases, what seven well-established medical-physiological facts should every judge (and attorney) be aware of?   (the facts in #5 will amaze you!)

  1. DEFINITION OF STRANGULATION: Strangulation is a form of asphyxia (lack of oxygen) characterized by closure of the blood vessels and/or air passages of the neck as a result of external pressure on the neck.
  2. WIDESPREAD LACK OF UNDERSTANDING:
    1. Many judicial officers and attorneys do not understand the medical and psychological severity of the act of strangulation.
    2. In many cases, the lack of observable physical injuries to the victim cause judges to minimize the seriousness of strangulation.
    3. In order to make sure judges understand the seriousness of strangulation, some prosecutors have asked courts for permission to have an expert in the field of strangulation testify at bail hearings as to the following: see 3-7 below.
  3. STRANGULATION IS ONE OF THE MOST LETHAL FORMS OF VIOLENCE USED BY MEN AGAINST THEIR FEMALE INTIMATE PARTNERS:
    1. The act of strangulation symbolizes an abuser’s power and control over the victim. The sensation of suffocating can be terrifying.
    2. Most victims of strangulation are female.
    3. The victim is completely overwhelmed by the abuser; she vigorously struggles for air, and is at the mercy of the abuser for her life.
    4. The victim will likely go through four stages: denial, realization, primal and resignation.
    5. A single traumatic experience of strangulation or the threat of it may instill such intense fear that the victim can get trapped in a pattern of control by the abuser and made vulnerable to further abuse.
  4. THE “NECK” IS THE MOST VULNERABLE PART OF THE BODY:
    1. Blood and oxygen all flow from the body to your brain through the NECK.
    2. The NECK is the most unprotected and vulnerable part of the body.
    3. More serious injuries occur from NECK trauma than any other part of the body.
  5. MEDICAL FACTS:
    1. Strangulation stops the flow of blood to the brain (carotid artery).
    2. Lack of blood flow to the brain will cause unconsciousness in 10 seconds.
    3. Lack of blood flow to the brain will cause death in 4 minutes.
    4. It takes very little pressure to stop blood flow to the brain (4 psi):
    5. It takes less pressure than opening a can of soda (20 psi);
    6. It takes less pressure than an average handshake (80-100 psi);
    7. It takes less pressure than pulling the trigger of a handgun (6 psi);
    8. It only takes 33 psi to fracture a victim’s larynx (far less than a handshake).
  6. LACK OF EXTERNAL EVIDENCE ON THE SKIN:
    1. CAUTION: Lack of visible findings (or minimal injuries) does not exclude a potentially life threatening condition. Strangulation often leaves no marks.
    2. A study by the San Diego City Attorney’s Office of 300 domestic violence cases involving strangulation revealed that up to 50% of victims had no visible injuries.
  7. STRANGULATION CAN CAUSE SUBSTANTIAL INJURIES (OFTEN DELAYED) SUCH AS:
    1. Physical injuries (e.g. death, unconsciousness, fractured trachea/larynx, internal bleeding (hemorrhage) and artery damage (intimal tears), dizziness, nausea, sore throat, voice changes, throat and lung injuries, swelling of the neck (edema), breathing and swallowing problems, ringing in the ears (tinnitus), vision change, miscarriage);
    2. Neurological injuries (e.g. facial or eyelid droop (palsies), left or right side weakness (hemiplegia), loss of sensation, loss of memory, paralysis);
    3. Psychological injuries (e.g. PTSD, depression, suicidal ideation, memory problems, nightmares, anxiety, severe stress reaction, amnesia and psychosis);
    4. Delayed fatality (e.g. death can occur days or weeks after the attack due to carotid artery dissection and respiratory complications such as pneumonia, respiratory distress syndrome (ARDS) and the risk of blood clots traveling to the brain (embolization).

MINNESOTA HISTORICAL FACTS OF INTEREST

  1. It is estimated that 23% to 68% of women victims of domestic violence have experienced at least one strangulation assault during their lifetimes. Victims of prior attempted strangulation are 8 times more likely of becoming a homicide victim.
  2. In response, the Minnesota Coalition for Battered Women (MCBW) with the assistance of WATCH and its member programs, pushed for the creation of a felony statute for domestic strangulation during the 2005 legislative session.
  3. In 2005, Minnesota became one of just six states with a specific statute making strangulation of a family or household member a felony-level crime. MS 609.2247.
  4. Under Section 609.2247 strangulation means intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person.
  5. Prior to the law’s passage, most domestic strangulation cases were charged as misdemeanors even though strangulation is one of the most dangerous forms of domestic violence.
  6. As of 2014, thirty-eight (38) states have passed similar strangulation statutes.
  7. As of 2016, Minnesota was the only state to have conducted an evaluation of the felony strangulation law.  Three nationally distributed reports prepared by WATCH in 2007 and 2009, identified the goals, the challenges and the benefits of the law including homicide prevention; interviewed professionals from the criminal justice system, analyzed court files, and made numerous recommendations to enhance the effectiveness of the law.   (Watch 2007, 2009).

STRANGULATION IS OFTEN ONE OF THE LAST ABUSIVE ACTS COMMITTED BY A VIOLENT DOMESTIC PARTNER BEFORE MURDER. 2004 Report, Hennepin County Domestic Fatality Review Team.

NOTE: The above referenced reports can be obtained by contacting “WATCH” 527 S Marquette Ave Suite, 1508,  Minneapolis, MN 55402, 612-341-2747, watch@watchmn.org,

REFERENCES: Gael B. Strack, JD, CEO and Co-Founder of the Family Justice Center Alliance, San Diego, CA, gael@nfjca.org, 888-511-3522; Dr. Michael Weaver, M.D., Medical Director, St. Luke’s Hospital’s Sexual Assault Treatment center, Kansas City, Missouri.

Alan F. Pendleton (Former District Court Judge), afpendleton@gmail.com

February 3, 2018.

THE POWER OF GRATITUDE – IMPROVING YOUR LIFE & LEGAL PRACTICE (17-05)

GRATITUDE

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)

763-498-1508; afpendleton@gmail.com

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 vantharp.com.

CRIMINAL JURY TRIAL JUDGES MANUAL “A Step by Step Guide From the Beginning of Trial Thru the Return of Verdict” (17-04)

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
     1. SCHEDULING
     2. WITNESS LISTS
     3. SEQUESTRATION, EXCLUDING PERSONS, COURTROOM CLOSURE
     4. JURY INSTRUCTIONS – PRELIMINARY DISCUSSIONS
     5. CHARGES AND ARRAIGNMENT
     6. STIPULATIONS AND/OR ADMISSIONS
     7. JEOPARDY ATTACHES ONCE JURY SWORN – DEADLOCKED JURY – MISTRIAL
     8. DEFENDANT’S RIGHT NOT TO TESTIFY – PROPER RECORD
     9. DISCOVERY ISSUES
     10. AFFIRMATIVE DEFENSES
     11. WITNESS INCRIMINATION ISSUES
     12. SECURITY/CUSTODY ISSUES (IF DEFENDANT IN CUSTODY)
     13. USE OF WEAPONS/HAZARDOUS EXHIBITS DURING TRIAL
     14. OPENING STATEMENT
     15. EXHIBITS
     16. COMPETENCY OF CHILD WITNESSES – SAMPLE QUESTIONS
     17. PROSECUTORIAL MISCONDUCT
     18. MOTIONS IN LIMINE AND OTHER TRIAL EVIDENTIARY ISSUES
     19. VOIR DIRE PROCEDURES AND GUIDELINES
     20. TRIAL GROUND RULES
     21. JUDICIAL WIKIPEDIA – JUDGES ONLINE BENCH BOOK
II. START OF TRIAL AND VOIR DIRE…………………………………………………….20
     1. INTRODUCTION OF CASE (20)
     2. INSTRUCTIONS TO THE JURY PANEL BEFORE EMPANELMENT (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)
III. INSTRUCTIONS BEFORE TRIAL BEGINS………………………………………31
IV. EXPLAIN TRIAL PROCEDURE & OPENING STATEMENTS……………..39
V. ORDER OF TRIAL & CAUTIONARY INSTRUCTIONS ……………………….41
VI. FINAL JURY INSTRUCTIONS & CLOSING ARGUMENTS…………………42
VII. EXCUSE ALTERNATE & START OF DELIBERATIONS …………………….45
VIII. END OF TRIAL: REVIEW OF ADMITTED EXHIBITS …………………….46
IX. RETURN OF VERDICT…………………………………………………………………..47

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

https://blogpendleton.files.wordpress.com/2014/12/2013-criminal-jury-trial-judges-manual.pdf

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