Writing The Motion

Discussion of writing the motion:

writing the motionTo start, you should write each of your motions. Don’t just rely on what is in the motions bank. Often, you will have no knowledge about the person who wrote that motion. She could have been the greatest lawyer ever – or something short of the greatest. Use old motions as idea generators. See what issues other people have spotted. See what cases they have cited. Look at those cases. Then, look at your facts and see what works. The key is to start from scratch for each motion. You will get efficient at these soon enough.

  • Keep some basic rules in mind. Keep your motion short, and keep your motion simple. You are balancing the interests of two audiences: the military judge, and the appellate judges. The military judge will read your motion but it really serves as a read-ahead for the motions hearing. None of it really matters until you prove your facts at the hearing. Your job is to familiarize her with the issue without causing her to fall asleep at her desk. At the same time, you need to develop your argument enough so that if you forget to make the legal point at the hearing, the issue is still preserved for appeal. (If you forget to prove the factual issue, generally speaking you will be out of luck).
  • See the attached motions shell for a good method for writing your motions. This motion is in the format found in the United States Army Trial Judiciary Rules of Practice before an Army Court-Martial. You don’t need all of that hyper-formal stuff (“Here comes the Government, by and with counsel . . . .” You also don’t need to put the judicial circuit. The judicial circuits represent the way that the Army Trial Judiciary has organized their judges for administrative purposes. Your court-martial stands alone.
  • You can use the IRAC formula (issue, rule, analysis, conclusion) – and your judges will probably appreciate it if you do. You want to have a clean, clear argument, and that formula helps you to accomplish that goal.
  • Just like with the trial in general, you want to start by writing your argument first. You do not need to write a law review article. Most of the time, the nature of the law is not at issue. The problem is the application of fact to law. Brief statements followed by the source of law are generally good enough. You don’t have to be a Bluebook geek, but you should have citations that generally follow the inside back cover of the Bluebook (use the Court Documents and Legal Memoranda format, not the Law Review format). If your judge is a Bluebook geek, then you don’t want to blow your credibility by not even making an effort.
  • After you state the law, state which facts apply to the immediate problem, and then tell the military judge how those facts either do or do not satisfy the law. Explicitly state the inferences that you want her to draw. Then, tell the judge how you want her to solve the problem (your conclusion).
  • Once you have written your argument, cut and paste it to the “Statement of Facts” section. Then, go through what you just pasted and delete out all of the statements of law and all of the inferences. The facts that are left are called “determinative facts.” They are the facts that determine or directly inform the issue before the military judge. Now, go through and add any other facts that are needed for the story to flow and that are needed to support the theme that is specific to this motion . Don’t put in a bunch of irrelevant facts just because you think they will make the judge get angry at, or sympathetic toward, the accused. The judge will be neutral, and all you will have done is hidden the facts that matter.
  • When you are done with that, go to the “Witnesses/Evidence” section. You need to prove every determinative fact. Putting them in your statement of facts is not enough. Prove it. Just stapling a document to the motion may not be enough. The Military Rules of Evidence (MRE) might apply to your issue. According to MRE 1101, the MREs apply to Art. 39(a) sessions unless some other rule says the rules don’t apply. One of those rules is MRE 104, which says the MREs don’t apply (other than the rules related to privileges) in motions about the qualification of a person to be a witness, the existence of a privilege, the admissibility of evidence, an application for a continuance, or the availability of a witness. In addition, the MREs don’t apply to competence hearings (see RCM 909(e)(2)). The key is to know that the rules apply unless you find an exception somewhere. List all of the evidence you intend to admit and the witnesses you intend to call. For the defense, if you want the Government to produce the witness or evidence, then you will also need to comply with RCM 703. If the witness’ credibility is not at issue or what they say will not be at issue, then consider entering into a stipulation of expected testimony. (If calling the witness live will help you, then don’t enter the stipulation). And, if you can agree on certain facts, consider entering into a stipulation of fact. I. Then, file the motion and get ready to call witnesses, do direct and cross-examinations, and present argument. J. Consider filing a proposal for what you want the military judge to write – a proposed findings of fact, proposed conclusions of law, or even a proposed ruling. K. If things change after you file your motion, file a supplemental. You may learn things through discovery, investigation, or even from litigating other motions that might impact your argument. Adjust if you need to.

trial in general

admissibility of evidence