If you’re reading this article, you practice criminal law. What percentage of your practice encompasses criminal defense is irrelevant for the purpose of this article. What is relevant is that at some point in your practice, you will have to file one or more motions for your client.
So how do you get the most bang for your buck out of the motions that you do file? This article will try to help you do just that while helping you to overcome some of the bad habits that you have labored under since law school.
Welcome to my five-step program to better motion practice.1
First, consider who your initial audience is—the trial judge. How many trial judges do we know or have we practiced in front of whom one could consider to be legal geniuses? If you’re honest, the answer is probably few, if any. Most trial judges do not even have the luxury of having an intern to assist them in researching the law, much less a briefing attorney. So you will have to educate the judge on the law, especially if your motion appertains to something the judge does not deal with on a frequent basis.
In addition to a lack of legal genius, most judges lack time—simply because of the number of cases set on the court’s docket every day. It’s a simple mathematical function: the more cases that are set on any given day, the less time, on average, the judge can devote to any given case.
All of which means, KISS (keep it simple, stupid).
Part of keeping it simple is to limit what you’re requesting the court to rule on to one item or topic per motion. A discovery motion may address separate items, but it is still a discovery motion. My preference is to split out the request for Brady material and not include it in a global discovery motion. If you file a motion to suppress, I suggest you not combine different subjects of suppression into one motion. If you have a case that involves a warrantless search and a statement obtained after your hero was in custody but who was not given the requisite Miranda warning, these should be addressed in two separate motions. If nothing else, this gives you two opportunities to argue the facts and law to the judge.
Another part of keeping it simple is to remove unneeded verbiage from your motions. Because we were taught this in law school, we’ve all drafted a motion that starts off like so:
Comes now the Defendant, [Your Hero (hereinafter “Hero”)], by and through his attorney of record, Tom Defender, of the firm of Defender, Darrow, Lincoln & Solomon, PLLC, who respectfully moves the Court to entertain and rule upon the following motion, which is supported by the facts and law set forth herein, etc.
Ask yourself, what does that verbiage add to your motion? Nothing. It takes up about a half a page and just dulls or blunts the judge’s attention to what you really want a ruling on. And in the context of criminal cases in state court, have you ever seen an indictment that names more than one defendant? I haven’t. The rule is one indictment (cause number), one defendant.2 The plaintiff is the State of Texas, and you sign the pleading as the attorney for Your Hero. Why do you need to waste more ink identifying who the movant is, while making the judge want to put your motion down and not read it?
Second, your motion should start with a simple recitation of the relief you are requesting and a short recitation of facts that support your position. Remember that you have already given your motion a title—a title that should alert any reader to what the motion is seeking. Consider this hypothetical example.
The caption of the motion would read “Motion to Suppress Videotaped Statement Taken December 4, 2011.”
The body of the motion would start as follows:3
This Court should suppress the videotaped statement made by the Defendant on December 4, 2011, because:
- Defendant was in custody, as shown in the videotape by him being in a county orange jumpsuit, handcuffed, and surrounded by members of the Sheriff’s and Constable’s Offices;
- Defendant was not given his Miranda warning before he was walked through the crime scene and questioned, on camera, about his involvement in the alleged crime; and
- There was no warning given to him as required by Article 38.22, C.C.P. before he gave his oral statement.
How different is that? You’ve told the judge specifically what you’re going to ask him to do and what facts you are going to prove that would entitle your client to the relief sought. This will also give you a step-by-step guide to what you will have to prove during your presentation of the motion.
Third, your motion should follow up with a recitation of facts that entitle you to relief. I put the following in:
Facts That Support Relief Sought:
I put that at the left margin because it provides a break and is easily found by the judge as he goes back and forth through your motion. I then follow with an expanded recitation of the facts. In the hypothetical motion, this would look something like this:
- On December 4, 2011, at 10:07 a.m., the Defendant was arrested by Sheriff’s Deputy Bob Donutlover on an outstanding traffic warrant. See Offense Report, Exhibit A, attached hereto and incorporated by reference for all intents and purposes.4 There is no reference in the Offense Report to the Defendant having been given his Miranda warning. And there is no record that has been produced by the State that shows that the Defendant was, in fact, given his Miranda warning.
- Deputy Donutlover took the Defendant to the County Jail and processed him into the jail on his traffic warrant. See Jail Records, Exhibit B, attached hereto and incorporated by reference for all intents and purposes. These records show that two Sheriff’s Investigators checked the Defendant out of the County Jail at 1:07 p.m. The Offense Report shows that the Defendant was taken into an interview room at the Sheriff’s Department at 1:19 p.m. There is no audio or video recording of what transpired in that interview room. There is no signed document showing that the Defendant was read his Miranda warning.
- The videotape that does exist is of the Defendant at the scene of the alleged crime. A true and correct copy of the videotape is attached hereto, marked Exhibit C, and is incorporated by reference for all intents and purposes. The videotape contains a date and time stamp that is visible on the screen. It starts at 11:53 p.m. While the Investigator identifies himself and the Defendant on the tape, no one gives the Defendant the warning that is required by Article 38.22, C.C.P., before they start walking him through the crime scene, asking him questions and eliciting answers.
I like to number my paragraphs sequentially. This is required in Federal Court and makes it easier to adhere to the idea of one paragraph, one fact or one set of related facts. And it is easier for a judge who is keeping notes to be able to check off the paragraph as proven.
Fourth, follow up with a Memorandum of Law in Support of Motion. Bold that and put it to the left margin on the page, like this:
Memorandum of Law in Support of Motion:
This is not only easy for the eye to follow but it serves almost as a page break.
The first paragraph of the Memorandum of Law should set forth a recitation of what constitutional provisions the motion is brought under or which are affected by the State’s actions. Always federalize your claims, asserting as many Federal constitutional rights as you can think of. Remember, there is not much worse for an appellate attorney than to realize that all of the claims were asserted under the Texas constitution.
Follow that up with the statutory provisions and case law that support your position. I have become an adherent of the style advocated by Bryan Garner in his book, The Winning Brief.5 Garner advocates putting all case cites into footnotes, so that your paragraphs read more smoothly. Once you become accustomed to putting your case cites into footnotes, you’ll never go back to the old way.
Try to weave in the facts so that the judge is not left with the impression that he is reading a hornbook. Remember that law school scarred many a lawyer, and you wouldn’t want to bring painful memories back for the judge, would you?
Fifth and last, give the judge a conclusion that wraps everything up in such a way as to show that your hero is entitled to relief. Not a “Wherefore, Premises Considered, Defendant prays that this Court grant his motion” conclusion. That requires the judge to remember everything that he has read and heard you argue. Instead, from our hypothetical motion, the Conclusion would look something like this:
On December 4, 2011,
- Defendant was in custody, as shown in the videotape by him being in a county orange jumpsuit, handcuffed and surrounded by members of the Sheriff’s and Constable’s Offices;
- Even though he was in custody for almost 14 hours, Defendant was not given his Miranda warning before he was walked through the crime scene and questioned, on camera, about his involvement in the alleged crime; and
- There was no warning given to him as required by Article 38.22, C.C.P., before he gave his oral statement on the videotape.
- Therefore, this Court should suppress the videotaped statement made by the Defendant on December 4, 2011. This Court should grant Defendant general relief.
In the Conclusion, I still number the paragraphs but I start over with number one. This reminds the judge of what is set out in the very beginning of the motion and allows a few air fingers as demonstrative aids as to why your Hero is entitled to relief.
If you start writing your motions in this manner, you may not be any more successful with the trial judges6 but you will have an easier time presenting your motions while making a cleaner appellate record.
1. Grateful acknowledgment is given to Bryan Garner and his LawProse seminars, from whom most of these techniques were learned.
2. While an indictment in Federal court can name multiple defendants, the logic is the same.
3. Notice that I do not start off with “To the Honorable Judge of Said Court:” To whom else could the motion be directed? This is needless surplusage that gains you nothing. No rule requires that it be included in pleadings or motions.
4. It is important that you incorporate what you have attached, otherwise it really isn’t part of the motion or pleading. See Street v. Cunningham, 156 S.W.2d 541 (Tex. Civ. App.—Fort Worth 1941, no writ).
5. Bryan Garner, The Winning Brief, 1999. If you don’t own this book, do yourself the favor of purchasing and reading a copy. It is an invaluable aid to your legal writing.
6. Unfortunately, you just can’t fix stupid. You just have to work around it.