Arguing The Motion
Motions hearings are a great opportunity to hone your trial skills in an environment that is somewhat safer than when the panel members are in the room. Prepare your direct, cross, and argument with the same rigor that you would if the members were in the room.
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- Remember, the law will not likely be the issue. This is not a law school moot court competition. Your job in argument is to tell the military judge why she should believe the facts that you presented in the hearing (credibility); what those facts mean (inferences); and why the facts satisfy or don’t satisfy the law. Don’t waste your time doing case briefs. You may need to state the legal factors to provide the military judge a framework for solving the problem, and might want to point to cases that have similar facts where the military judge or appellate judges solved the problem in your favor, but that is about as far as you need to go.
- Don’t resort to characterizing what the other party has done. If you think their argument is weak, show why it is weak by pointing to the facts. Do you think you help the military judge to solve the problem when you say, “Their argument is smoke and mirrors”? You don’t. You do help the military judge if you say, “Their argument is weak because of X, Y, and Z.”