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Practice Notes
Successful Motions Practice
Seven Views from the Bench
By Colonel Alyssa S. Adams, Colonel J. Harper Cook, Colonel Charles L. “Jack” Pritchard, Jr., Colonel Robert L. Shuck, Colonel Tyesha L. Smith, Lieutenant Colonel Robert E. Murdough, & Lieutenant Colonel Tiffany D. Pond
Achieving your desired result in court through motions shapes the contours of the case you litigate at trial. Winning motions helps you litigate the case you want to litigate. Successful results from motions can give you time to react and refine your trial strategy. However, many counsel are not dedicating the time and effort to shaping the field of trial by presenting winning motions to the judge.
Most motions look like spaghetti. Counsel present tangled and confusing statements of issues to the judge; provide too many, wrong, or unnecessary facts; provide only the barebones, black letter law; change the relief they want over the course of the motion; and fail to connect all the pieces in a logical fashion. This leaves the judge to untangle the noodles and make sense of them: What does the party really want? What are the issues? What are the important facts? Who really has the burden? And, how does the law dictate a particular result? The chances of achieving the result your motion seeks by making the judge do the work for you are not high. In the words of Judge Jake Bashore, “Submit and litigate a motion with only half-hearted effort, and you will reap the . . . outcome consistent with the effort you put into that motion.”1 Or, more colloquially, “Give me garbage, and you are likely to get a garbage result.”2
To persuade your audience, be your audience; write the ruling then the motion.
One of the most common issues in motions practice is a disconnect between what counsel present to the judge and what the judge must determine. If counsel want to achieve their desired results, counsel need to approach those results from the decision-maker’s perspective. Counsel can then envision the legal issues the judge must resolve; the conclusions the judge must reach for the moving party to win; the facts the judge must find to reach those conclusions; and the law that forms the boundaries of, and influences, the judge’s analysis. Be the judge. Write the ruling. Then format it as a motion. In this way, because you are speaking the judge’s language, answering the judge’s questions, and effectively handing the judge a ruling, your likelihood of success greatly increases.
This article is intended to help trial practitioners think like the judge when it comes to motions practice. Seven military judges provide their tips to writing a persuasive and helpful brief supported by evidence, and helping the judge reach the party’s desired result during a hearing. In five “Steps to Success,” the article addresses each component of the motion required by the Rules of Practice before Army Courts-Martial (Rules of Court),3 provides guidance on persuasive writing, and then discusses the motions hearing. In approaching the steps as a gift—anticipation of the gift, the box for the gift, the wrapping paper for the box, the bow on top, and the presentation of the gift—the Judiciary hopes to receive the gift of better motions practice that leads to more efficient and just rulings.
COL Charles L. “Jack” Pritchard, Jr. (Photo courtesy of author)
Step One to Success: The Anticipation
Introducing the Problem and the Solution: A View from Judge Charles L. “Jack” Pritchard
Would you rather judges groan when they see your motion or be eagerly anticipating resolving the legal issues presented? The top of the first page of your motion can be a persuasive hook, but it usually just shows a desired result. That means the judge is not anticipating your gift, because the judge has to go fishing in the brief to start developing an interest. In the words of Judge Michael Korte,4 “If the reader is on page two through five before they understand what you want or what your argument is, you’re fighting an uphill battle. . . . That first page is valuable real estate.”5
The “hook” I am referring to is a mental hook. There is a reason we talk about primacy as a persuasion technique. The brain reaches conclusions based on the first information it is presented, and those first impressions tend to stick in the brain.6 So, use the top of your motion to hook the judge on what the motion is about, what issues the judge must resolve, why the judge must resolve them in a way favorable to your client, and what the judge must ultimately do. You need a concise description of the gift you are giving the judge to show what he or she has to look forward to.
Start with the motion’s caption, which should accurately tell the judge which legal box the judge is operating in and the general subject matter of the motion. Many times, the caption is wrong or incomplete. A caption may indicate it is a “Motion for Appropriate Relief” when it is really a motion to dismiss or a motion in limine. A caption may indicate simply that it is a “Motion to Dismiss” without indicating why—the main issue requiring dismissal (such as unlawful command influence). Imprecise or incomplete captions confuse the judge and result in the judge going fishing rather than being hooked. There are three categories of motion: dismiss, in limine,7 and appropriate relief (anything other than the first two). Pick one category and then add a descriptor of several words that narrows the walls of the box.
Next, request relief, the only part of your introduction the Rules of Court require. A request for relief is not a summary. Keep three things in mind when requesting relief. First, be clear and consistent with the law on which you are relying. For example, if you are moving to compel discovery, do not ask for production of evidence—you are inconsistently relying on Rule for Courts-Martial (RCM) 701 for the motion and seeking relief under RCM 703. If you are moving to compel an expert consultant, do not talk about the expert testifying—expert consultant analysis is different than expert witness analysis.
Second, be consistent throughout your motion. Some motions ask for one thing at the beginning and then seek something different or additional over the course of the motion.
Third, do not ask for something the judge cannot do. For example, trial counsel routinely request the court to order the criminal investigation command (CID) to turn over documents to the defense counsel, but the judge generally does not have the authority to order a third party to do anything—the judge will instead order the trial counsel to make CID turn over the documents.
Now, add a summary. As long as you request relief at the beginning of the motion, the Rules of Court do not prevent you from adding to that section. And unless you add to that section, it will not hook the judge. Include a summary that frames the issues, includes some major facts that give context to the issues, and briefly explains why the requested result is necessary. Make this a statement of what went “wrong” and how it can be fixed.8 This should take no more than a quarter to a half page and should paint a picture for the judge—a preview of the wrapped gift. Now, the judge is hooked.
Next, in appropriate cases, clearly define the issues presented by the motion. Add an “Issues Presented” sub-header/paragraph and frame the issues as questions in bullet format, organized in the order in which the judge must answer them. This will do two things. First, it will force you to determine what questions the judge must answer. Second, it will provide you (and the judge) structure for the rest of your motion (and the judge’s ruling).
Organize your Facts, Law, and Argument sections to answer the issues. Sometimes there is only one issue, making a separate “Issues Presented” section unnecessary and unhelpful. On the other hand, consider a motion to suppress an accused’s statement to civilian law enforcement that involves issues of voluntariness: whether civilian law enforcement should have informed the suspect of the rights in Article 31(b), Uniform Code of Military Justice9 (nexus between civilian and military law enforcement investigations?) and Miranda rights (custodial interrogation?); whether later searches or statements were fruit of the poisonous tree; and whether suppression is an appropriate remedy. Clearly stating at the beginning of your motion each issue in the order in which the judge must answer it will drive how you write the rest of the motion, tell you which facts are important, and compel you to gather specific evidence. It will also lay the spaghetti noodles in neat lines; the judge no longer needs to untangle. The judge can, and will likely, lift the issues presented directly into the ruling.
Finally, tell the judge what to do and who must do it. I share Judge Bashore’s views about the “Burdens” paragraph as succinctly set forth in his 2018 article,10 and they are as apt today as they were five years ago; I commend it to you.
Once you have hooked the judge and determined the issue-centric structure of your motion, you have to prove how you are successful; show the contents of the gift you are giving the judge.
COL Alyssa S. Adams (Photo courtesy of author)
Step Two to Success: The Contents
Writing the Essential Facts and Proving Them: A View from Judge Alyssa Adams
It is my view that, in fact, the law is not the most important part of motions practice for trial practitioners. The law, whatever its status at the time a motion is litigated, cannot be changed by counsel or the judge or anyone else at the trial level; it can only be applied. To what can it be applied to? The facts! The judge can look up the law, but the judge cannot look up the facts; only counsel can relay those. Most importantly, facts must be supported by some type of evidence.11 Evidence can be, for example, a witness statement, a police report, a stipulation, a text chain, or live testimony. The judge cannot make a finding of fact based solely on counsel’s brief or argument. The judge cannot make a finding of fact based solely on counsel’s brief or argument.12
Once you have familiarized yourself with the applicable law, you are ready to write the essential facts portion of the ruling.13 Give careful thought to which specific facts you need to make the intended ruling. Do not include every fact that is known in the case. Do keep in mind that if this is the first motion filed, you may need to provide the judge with some context and background. Remember that until motions are filed, the judge generally only has the charge sheet and a few allied papers and has no idea what the case is about. Providing the judge a chronology of events can be helpful. If you are providing facts simply for context, consider giving a header for “Background Facts” and another header for “Essential Facts” that are specific to your motion. The judge needs to know your view of the essential facts for each motion filed. If there are multiple legal issues in one motion, it may also be helpful to organize the facts to support each issue presented.
Take the time to determine which facts you must establish to win your motion. In determining which facts are essential, ask yourself, “Do I need to establish this fact for the judge to rule in my favor?” For example, the Government intends to introduce Military Rule of Evidence (MRE) 404(b) evidence that the accused showed pictures on his phone to an alleged victim after the charged offense as a threat to induce her not to report the incident. The Government alleges this shows consciousness of guilt. In a motion to exclude that evidence, is it necessary to establish the dates charges were preferred or referred? No. Is it necessary to establish that the alleged victim actually saw the pictures? Not really. Is it necessary to establish that the accused had a phone containing compromising pictures of the alleged victim after the charge allegedly occurred? Yes.
I recommend reviewing previous motions and rulings on an issue similar to the one you are raising. Look at the facts laid out by counsel in their briefs, then compare with the judge’s findings of fact in the ruling. They are often vastly different. Use that as a compass to get started in the right direction with your essential facts.
Another example: I often receive motions that restate the charges in the case. Unless it is germane to your motion, there is no reason to do that. Speaking of germaneness, if you are filing a motion to dismiss for violation of the RCM 707 right to a speedy trial, do not cut and paste the facts you wrote for your motion to exclude MRE 404(b) evidence as there is likely no overlap.
Once you have established the essential facts required to rule in your favor, put your trial practitioner hat back on and remember that you must provide evidence of those facts. Simply stating them in your brief does not allow the judge to consider them as facts. Do not proffer facts that never materialize as evidence, because it may cause the judge to question your case and your competence. Determine how you will offer each fact (for example, through documentary evidence, a stipulation, or through witness testimony).14 A chart similar to an elements checklist may be useful. Write the fact you need to prove on the left, and write in the evidence you will provide to support it on the right.
Acknowledge the facts that do not support your ruling by indicating why they do not apply or why they do not hold weight. For example, perhaps they are proffered by the opposing party and there is insufficient evidence to support them. You may also realize while writing your legal analysis that you overlooked an essential fact. Be sure to go back and add it to your facts section, and make sure that you offer evidence of it as well. Remember, if you want the judge to rule in your favor, provide the judge with evidence of all the facts required to do so.
After determining the contents of your gift to the judge, you must create the box in which those contents reside.
LTC Robert E. Murdough (Photo courtesy of author)
Step Three to Success: The Box
Writing the Law and Judicial Conclusions. A View from Judge Robert Murdough
To succeed in your motion, you have to convince your judge to make legal conclusions—applications of facts to law—that prove a legal “wrong” or establish a legal entitlement for which the judge should grant relief. The “legal authority” begins to create the box in which your facts reside. It shapes the determination of which facts matter and helps you draft your “Facts” section. But the black letter law is like a box without a lid; the contours of the legal landscape are unfinished. Your legal argument puts the lid on the box and aids your judge in reaching conclusions that achieve the result you seek. Following the “Steps to Success,” you should draft the legal conclusions first and ask how the facts can be applied to the law to get you to those conclusions. This will shape your argument. Done well, the “Legal Authority and Argument” section can be “the most important part of your motion.”15 Yet it is often “the most underdeveloped.”16
Too frequently, the “Legal Authority and Argument” section is too long on the former and too short on the latter. These terms are combined for a reason—one without the other is an unfinished box. Some counsel divide this section into two, which breaks the natural links between “facts,” “legal authority,” and “argument,” creating three disjointed blocks from which your judge has to discern what you want and why you want it. While you should clearly distinguish the law from your arguments about the law, the two can be used more effectively in concert to create the legal box and explain why the judge should reach the conclusions you seek.17
An effective “Legal Authority and Analysis” section does two things. First, it goes beyond the bedrock cases and provides your judge with controlling or persuasive authority applicable to your case. You can be confident that your judge already knows the seminal cases. Those cases have their place, but lengthy recitations of the holdings of these cases along with piles of string cites are unnecessary for “legal authority” and insufficient for “argument.” Go beyond these and find examples that fit your case. For example, the Criminal Law Deskbook provides dozens of situational examples for the application of MRE 404(b).18 The “Confrontation” section of the Opinion Digest on the Court of Appeals for the Armed Forces (C.A.A.F.) website shows how that court has applied the black letter law to different aspects of scientific reports—an increasingly common form of evidence in military justice.19 With these and other readily available secondary sources, you will reach a far better position than just the principal cases.
Second, a “Legal Authority and Argument” section shows the path the judge should take to reach the conclusions you want. In law school, you likely learned the “IRAC” framework—issue, rule, analysis, and conclusion—which is an effective technique. Yet, judges read many motions that are simply issue, rule, and conclusion, with little or no analysis. For example, almost every defense motion seeking to admit evidence under MRE 412 includes some version of this sentence: “The right to cross-examination has traditionally included the right ‘to impeach, i.e. discredit the witness.’ Olden v. Kentucky, 488 U.S. 227, 231 (1998) (cleaned up).” Then the Government typically responds with, “An accused is not simply allowed ‘cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (cleaned up).” Every judge has read these sentences countless times. Yet we almost never see “Olden, supra” or “Van Arsdall, supra” in the argument to explain how the defense is (or is not) deprived of effective cross examination without the proffered evidence in this case. Instead, counsel skip straight to the conclusion with a terse: “This evidence is constitutionally required because it is relevant, material, and the probative value outweighs the dangers of unfair prejudice” (or, in the Government’s case, the inverse).
Do more than just race to your conclusion; apply your research to your facts and show your work. The path to your conclusion is paved with facts, not legal citations. As Judge Adams states above, “the judge can look up the law, but the judge cannot look up the facts.” For example, if the last prong or factor in the applicable legal test is an MRE 403 balancing test, explain the probative value of your evidence; cite back to your facts and show how they fit into the rest of your evidence along with the case you found, which shows that such evidence in a similar situation was close enough in time or similar enough in substance to survive the balancing test. Why is the evidence probative? How probative is it? Are there any dangers of unfair prejudice? What are they? Do not just dash off with: “The clear probative value of this evidence is extraordinarily high and greatly outweighs any minimally residual danger of unfair prejudice.”20 Like argument without authority, authority without application is wasted effort because it provides the judge an incomplete box. The judge must show their work to the appellate courts. Do the work for the judge, and you are one step closer to success.
Many times, counsel get lost in their argument and forget or add facts, confuse the law, ask for new relief, and skip major legal issues. After you write this section, check for internal consistency with the rest of your motion. Does your argument mirror the “relief sought” section at the top of your brief, or did you seek new or different relief in your argument? Maybe you argued that you need an expert consultant to do three things; did you list all three in your introduction or just two of them? Is there a fact in your argument that you did not mention in your “Facts” section? If so, go back and add it and list the evidence for it in your “Witnesses/Evidence” section. Is there something in your “Facts” section you did not mention in your argument? If so, is it an essential fact? Did you end your argument with an explicit statement of how the facts and the law lead to the specific relief you want, or did you leave it up to the judge to infer that connection? Perhaps most importantly, did you answer the issues you presented?
If your “Legal Authority and Argument” section defines the contours of the law, elucidates the essential facts, draws conclusions relevant to the presented issues, and demonstrates a persuasive and logical application of the facts to the law, your motion will present the judge a complete box with contents. To make it look like an enticing gift, you must wrap it accordingly.
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Step Four to Success: The Wrapping
Writing Persuasively: A View from Judge Tiffany Pond
Be clear; be precise; be brief. These should be your watchwords in preparing pleadings for the court. Clarity, precision, and brevity will make your writing more persuasive. You can give the judge a gift box with the right contents, but if the whole thing looks a mess the judge will not want to unwrap it. Here are some general principles to help you write more persuasively.21
Be Clear
You cannot persuade the court if the judge does not understand what you wrote. A judge should not have to read a sentence more than once to understand it. First, no one enjoys feeling like an idiot, which is how I feel when I must re-read something to understand it. Second, a judge handling a busy docket will not appreciate time wasted deciphering a poorly written motion. A pleading, therefore, like any good writing, should be easily understood in a single read.22 Writing clearly is also a means to help you understand the issues and clean up your thinking.23 If you do not understand the law or how it applies to the facts of the case, your writing will show it. Writing ultimately is “thinking at its hardest.”24 You can make your writing clearer by improving both form and substance.
Establish a schedule for the work and include time to think. Writing is a process. A good motion will rarely, if ever, come fully formed from the first keystroke. Good writing takes time, effort, and a lot of revision. Chances are, if it was easy to read, it was not easy to write. Give yourself enough time to do the work. To write clearly, you must know exactly what you must say. So, before you begin writing, you need to have a firm grasp of the applicable law. This will also help you determine what facts you need to include or further investigate. The writing process has different stages: developing and generating ideas, outlining the argument, writing, and revising. Set deadlines for these different stages of work and afford time to think. The mind has fascinating ways of forming ideas while walking the dog, driving to work, or brushing one’s teeth. “Good briefing is the product of lengthy thought.”25 The earlier you begin, the more time you will have to ponder, discuss the issues, and refine your argument. If the only deadline you use is the filing deadline, your work will suffer.
Clear writing requires a logical, coherent framework.To give your argument structure, start with an outline. It will serve as a roadmap that enables the judge to follow the argument’s reasoning without getting lost. An outline also helps you organize your thoughts, identifies gaps in supporting evidence and law, ensures you address all essential points and issues, and will make writing easier and faster. Begin and end your outline with your strongest points. Look for weaknesses in the facts, law, or logic, and try to identify potential counterarguments. Address potential weaknesses in the middle of the outline. If you are the respondent, consider addressing your opponent’s most compelling argument first.
Use headings, subheadings, and signposting to enhance readability. Headings and subheadings serve as signposts that make the argument’s outline visible and explicit. They can also help explain and advance the argument. For example, rather than stating, “The second prong of the Reynolds test,” a subheading might read, “Evidence of the accused’s prior drug use is not probative of a material issue other than character.”26 You can also add other signposts to let the reader know where the argument is going. For example, begin with: “Opposing counsel’s argument fails for three reasons.” Then use the markers of “first,” “second,” and “third” to explain the three reasons in detail.27 Just like an introductory paragraph, described above by Judge Pritchard, signposts show the reader what to expect, which allows the judge to better incorporate facts and ideas as they appear on the page.
Write like a person, not a lawyer.Use plain English, and wherever possible, eliminate the legalese. It will make the prose clearer and more persuasive. For example, which of the following sentences is more descriptive: “The accused committed an assault upon the alleged victim,” or, “The accused struck his fellow Soldier with a tire iron”? Plain language is often stronger, easier to understand, and, therefore, more persuasive. Jettison the “heretofore” and “hereinafter” as well as the ab initio and sui generis. Some legal, Latin phrases, like mens rea, have both colloquial and specialized legal meanings. But do not assume that traditional legal phrases are legally necessary.28 Using gratuitous legalese does not make you sound more skillful and may do just the opposite. Instead, try writing sentences you can easily speak.29
Limit acronymsthat are not commonly known. If the only hospital involved is the Fort Belvoir Community Hospital, then instead of using “FBCH” throughout the motion, you can just write “hospital.”30 Some acronyms are commonly understood, such as FBI and IRS, or DFAS and CID within the military. Those are fine. But avoid creating new acronyms or using acronyms that are not commonly known.
Use the form to elevate the substance. Use indents, spacing, and paragraphs as visual breaks. Break up long paragraphs if possible. Each paragraph should be its own independent idea with an introductory topic sentence. Aim for an average of twenty words per sentence.31 Shorter sentences help make the best parts stand out but varying the sentence lengths gives the prose some rhythm and keeps the reader engaged. Within sentences, order phrases and clauses to put old or familiar information at the beginning of the sentence and new or unfamiliar information at the end.32 Familiar information serves as a scaffold or frame to support the new information, thereby aiding the judge’s transition from each thought seamlessly.33
Be Precise
You must be scrupulously accurate in your recitation of the facts and the law. Imprecision—whether from carelessness or intention—results in a loss of credibility. Your credibility is not confined to one case. And when lost, it will be a challenge to rebuild. You should appear reasonable, rational, and credible before the court. Justice Scalia wrote that counsel’s objective in every argument is to show themselves “worthy of trust and affection.”34 One way to achieve this is through precision with the facts, the law, and language.
Be precise with the facts. Never exaggerate, overstate, or distort the facts.35 Even a careless misstatement can cause a judge to question other things you say. So, scrupulously fact-check. Be careful not to draw conclusions or characterize events, facts, or people or inadvertently argue.36 A well-written “Fact” section will half-argue your case all on its own. Endeavor to use strong nouns and verbs and minimize adjectives.37 Allow the facts to speak for themselves. Judges do not like being told what to think; so, show them. Avoid editorializing and adding adverbs in the fact section—interestingly, tellingly, therefore, thus, so. These types of words insert your opinion. Facts, not opinions, persuade the court.
Be precise with the law. Never distort case law to fit your facts. If a case is not completely on point but the reasoning is helpful or persuasive, then say so. Never quote a case you have not read, and Shepardize your citations. A quick way to lose credibility is to cite an Army Court of Criminal Appeals (A.C.C.A.) decision that C.A.A.F. subsequently overturned on the grounds for which you used it. Understand the order of precedence and focus your attention on binding decisions when they exist. Sister Service court opinions, unpublished A.C.C.A. opinions, and Federal circuit opinions can be persuasive but are not binding. If you cite an unpublished case, ensure you reflect that in your pleading.
Be precise with language.Refrain from overstatements and absolutes; they undermine credibility. When you write “always” or “never” or that something is the best, worst, most, or greatest, you are throwing down a gauntlet and challenging the judge to find an exception, which almost always exists. Dispense with adverbs ending in –ly, such as clearly, obviously, outrageously, unbelievably. These words “protest too much” and paradoxically signal weakness.38 Try removing these words from a sentence and see how much stronger it is. Refrain from using hyperbole (“the other side’s argument is ridiculous”) as well as personal attacks (“opposing counsel is ridiculous”). Neither win you any favors. If you are on the receiving end, responding with civility and courtesy—rather than mutual mudslinging—can turn the attacks to your advantage. Calmly pointing out misstatements while focusing on the issues allows you to show the upper hand and strengthen your reputation with the court.
Being precise includes dealing with the hard stuff—the bad facts, the unfavorable law, and opposing counsel’s really good argument. Deliberate or careless omissions hurt your credibility, while acknowledging and addressing the hard stuff enhances it. If there is unfavorable law, seek to distinguish the facts and explain why the law is inapplicable or why the reasoning is flawed. If opposing counsel has a strong argument, ignoring it risks conceding the point or failing to contest a fact. If the fact or law is indisputable and is not dispositive, acknowledge it openly and then explain why other factors outweigh it. You can strengthen your argument by addressing the “bad” facts or unfavorable law up front rather than letting your opponents use them to their advantage. “Rarely will all the points, both of fact and of law, be in your favor.”39 You should not yield ground unnecessarily; but when the ground is indefensible, conceding the fact or legal point builds credibility with the court and allows counsel to direct their efforts to the more significant, contested issues.40
Be Brief
Judges prize brevity. In the early 2000s, Professor Kristen K. Robbins surveyed all sitting Federal judges, on the Supreme, circuit, and district court levels about their views on the way lawyers write and what they consider good legal writing.41 Of the 355 judges (45 percent) who responded, the advice that appeared most often was “the need to be concise and clear.”42 Brevity enhances clarity. A judge is more likely to understand a motion that is succinct and to the point than a motion that is long and circuitous. Your goal is simplicity. Yet, you must avoid oversimplifying. The aim is to convey an idea accurately and completely with the fewest words possible. Concise writing also ensures the judge reads the brief with full attention. “A judge who realizes that a brief is wordy will skim it; one who finds a brief terse and concise will read every word.”43 You should not overly worry about brevity while writing the first draft. Just get the argument on paper. Work on being concise later through editing.
COL J. Harper Cook with his parents, Pam Cook (L) and Robert Cook (R). (Photo courtesy of author)
Before revising, let the draft cool. Whenever possible, set the draft aside before you revise. The longer, the better. If a filing deadline is weeks away, complete the draft a week before it is due. If less time, let the writing cool overnight before reviewing. Even under severe time constraints, an hour or two can be beneficial. We are often our own worst editors, skipping over errors and seeing only what we intended to write. Delaying editing will allow you to return with fresh eyes, new ideas, and a different perspective. Before sending the draft to a supervisor or friend, try reading it aloud. This will force you to hear what you wrote rather than what you meant to write.
Make every word count. Strong, dynamic writing is concise.44 So, omit unessential facts and law. They will bog down your argument. Omit unessential words, which bog down your prose. For example, remove unnecessary introductory clauses, such as “it is important to note that” or “the facts show that” or “it is evident that” or “there is” or “there are.” The sentence, “It is evident that the proffered character trait is neither relevant nor admissible under MRE 404(a)” can be revised to a cleaner, “The proffered character trait is neither relevant nor admissible under MRE 404(a).” Replace multiword prepositions with single-word prepositions.45 These substitutions will make your writing crisp and succinct.
Remove the passive voice, unless you have good reason to use it. Passive voice uses more words and yet still manages to lack the clarity of active voice, because omitting the doer or subject creates ambiguity.46 “An agreement was made.” Who made the agreement? “Evidence was lost.” Who or what lost the evidence? If you can tack on “by zombies” to the end of a sentence, it is likely passive voice.47 But not all passive voice omits the doer or subject, so the unfailing test is to look for a be-verb such as is, are, am, was, were, been. For example, “The rulings denying the requested relief were issued by the Court.” Notice, even when the actor is included, the passive voice is less clear because it subverts the normal word order, which makes it harder to process the information. In contrast, “The Court denied the requested relief” is easier to understand in a single read.48 So, avoid the passive voice, unless it serves a purpose. For instance, you might use it if the actor is unknown or irrelevant or you want to emphasize the subject. Passive voice has a time and a place. Just use it sparingly.
Minimize block quotes. Be honest. How often do your eyes skip over a block quote when you see it on the page? Coming across one feels like running into a wall. The natural inclination is to just go around it. Quotes can be powerful, especially when setting forth the major premise of the motion because our legal system is based on precedent. But a quote’s effect “is inversely proportional to its length.”49 Rather than using a block of text, consider weaving the quote into your motion with paraphrasing to keep it stitched together, paraphrasing the holding and then following with quoted language, or dropping the quote in a footnote.
Accurately rephrasing the legal principle is work but pays dividends. First, by rewriting the quote into your own words, you gain a better understanding of the legal principles.50 Second, when done correctly, you enhance your credibility with the court. Third, where a quote is wordy and dense, your rewrite can make both the quote and the motion more readable. But if you want or need to use a block quote, you can increase the chances the judge will read it if you use a good lead-in rather than the boring, unhelpful “the Court stated . . .”51 A good lead-in tells the judge why the quote is relevant and why it should be read.52 It also ensures the judge still follows your outline even if the judge skims or skips the block quote.
Be a ruthless editor, but not too ruthless. Brevity persuades to the extent it promotes clarity. When you omit too much, clarity can be lost. When editing, focus on removing only the unessential. Remember, as Judge Adams said above, judges know very little, if anything, about the case other than what you present to the court. And the judge should not have to sift through the evidence to make sense of the facts, the issues, and your argument. Aim to not use “so many words that the heart of the argument is lost” but also not “so few words that the argument omits critical assumptions or connections.”53 When you achieve this balance, your writing will be more persuasive.
Once you have wrapped the legal box and its contents in a way that draws the judge in and leads the judge easily through your brief, you have only one step left—tie up the gift with a neat bow.
Step Five to Success: The Bow
The Art of Litigating at the Hearing: A View from Judge J. Harper Cook
The Big Picture
Put yourself in my robe for a moment.
I am “responsible for ensuring that court-martial proceedings are conducted in a fair and orderly manner, without unnecessary delay or waste of time or resources.”54 Done right, and with engaged counsel, the motions session is a great opportunity for me to do just that—and more.
Of course, the express purpose of the session is to resolve interlocutory questions and questions of law.55 In so doing, my rulings help the parties shape the battlefield for trial. And I can, at least in theory, set the conditions for trial on the merits to proceed with fewer interruptions. But as discussed below, the motions session can serve other purposes as well if counsel avail themselves of the opportunity to make the most of the session.
How I prepare for the session and what that means for your preparation. Remember where we are in the process. After arraignment, but before counsel have filed any motions, all I know about the case is what is contained on the charge sheet. But the case begins to come to life when I read your motions. Before I start that session, you can expect that I have developed questions for you about:
(1) The facts as you view them. I first attempt to synthesize your evidence. This comes from reading your documentary evidence and, if offered, any digital evidence you presented. That is, I start to form a big-picture understanding of what this case is about, who the key players are, what the broad timeline is, and what legal theories will be advanced at trial. From there, I drill into the specific facts you advanced in your motion.
(2) Conflicting, omitted, or editorialized facts. The ruling will rise and fall based on the court’s findings of fact as applied to the relevant law. I circle your adverbs and adjectives and ask myself, “How much work are these words doing here?”
(3) Conflicting or omitted evidence in support of your facts.56 If your documentary or digital evidence does not support a fact, then you need to present evidence at the session. Usually, that is in the form of witness testimony.57
(4) The law. I will read unfamiliar case cites and will conduct additional research as required.
(5) Agreement or concessions. If both sides agree to an issue, or to a fact, or to a point of law, I will seize upon it. In many cases, the responding party simply states, “The Government agrees with the defense’s statement of facts, except paragraphs X and Y, and adds the following facts.” This practice is encouraged by Rule 6.5 of the Rules of Court,58 will save you time, and will focus the litigation on the facts at issue. Many judges treat this as a concession to those facts solely to resolve the motion. Other judges may confirm or test the concession during the motions hearing to make sure there is knowing agreement. This is another point where it is good to know your judge.
(6) Your logic. My ruling must be fair, balanced, and legally correct. As an advocate, you are not constrained to being “balanced,” but I will take note where your brief crosses the line into hyperbole or completely fails to address unfavorable facts, unfavorable law, or the other side’s logic.
What does all this mean to you? In my view, it means you should come to the session prepared not only to highlight why you should prevail, but to engage with me in a conversation about my questions.59 To prepare for that conversation, you should, of course, know your facts, the law, and why your logic should carry the day. But you should also expect that my questions and your opponent’s presentation will reveal apparent weaknesses in your position. The expert advocate will find a way to anticipate what the judge may see as apparent weaknesses and be prepared to respond in kind. If you have followed the “Secret to Success,” you have written the ruling and therefore know the weaknesses in both parties’ positions that you, as the judge, want to probe during the hearing. This is an advanced skill that requires you to see beyond your own position. But it is a critical skill worth mastering.60
Conducting the Session
Many judges begin by reading the exhibit markings of your pleadings into the record. Many judges then clarify which side has the burden of persuasion and will invite additional evidence, if any, from both sides. After the parties have presented evidence, the judge will invite argument, first from the party with the burden, followed by the opposing party.61
During argument, highlight the strongest, salient points from your brief. Not everything in your brief is important; stick with the hard bits. Pay attention to the judge as you do so, for at some point the judge may be ready to question you about your argument. You should encourage and look forward to those questions; they will reveal the matters the judge cares about. Answer those questions then and there as directly as you can.
You may discover that the judge has simply misunderstood your position or misread your brief. Clean up the issue directly and professionally. The judge may ask, “Where in the record will I find support for ‘X’ fact?” Take the time to get the judge a pinpoint location to the document or media in support of the fact. The judge may ask if you are conceding a point. Do not cave-in to every invitation to concede, but be open to conceding obvious points or losing arguments for the sake of your credibility. The judge may zero in on conflicting legal authority. Either acknowledge the conflict or distinguish it from the issue before the court. The judge may test an apparent flaw in your logic. Persuade the judge that your logic is sound. The judge may play one side against the other, testing the strength of your position against your opponent’s position. Acknowledge the good-faith arguments of opposing counsel, then explain why you should prevail. The questions you may face are limited only by the imagination—and sometimes the preparedness—of your judge. Arrive prepared, stay flexible, and remain confident.
If you find you are repeating yourself or simply rehashing your brief, wrap it up, end with your strongest points, hand over the podium to your opponent, and prepare for rebuttal.
A savvy opponent may have a slight advocacy advantage because she can focus on the judge’s questions from the outset. But you would be wise not to interpret the judge’s “hostile” questions to your opponent as the judge siding with you; you are likely to receive equally “hostile” questions when it is your turn to argue. Remember that the judge is not making an argument or stating a position; rather, the judge is testing your arguments. At times, you may encounter a judge who poses a hypothetical to test your logic. Endeavor to engage with the judge on the hypothetical rather than evading it or by sparring with the judge about its applicability.
Other Purposes for the Hearing
Bear in mind that the hearing is not the main event. The main event is the trial itself. Whether you prevail or not on your pretrial motions, you should view the motions session as a great opportunity to advance other goals.
First, establish your credibility with the court as a prepared, professional, and competent advocate. You may lose today’s motion, but your credibility can carry through to the trial itself where it could matter to an issue in the future. Depending on the forum elected, you may find yourself arguing before the very same judge to decide the merits of the case or what sentence is appropriate.
Second, in the context of the issues raised, you can begin to see blind spots in your case. If you are wed to the brilliance of your case, this may sting; but it is better to discover it at the hearing rather than mid-trial.
Third, if defense counsel and the accused are still wrestling with a forum election, they can take this opportunity to observe the judge interact with counsel about matters of import to the case. You never know, but even the most poker-faced judge may say something, react in a certain way to evidence, or interact with counsel in a way that may influence that decision.
Finally
Oral arguments help judges clarify core issues in your motions, clear up confusion about your pleadings, and test the logic of your claims, all with a goal of rendering the correct result to an interlocutory issue. Take advantage of this opportunity to engage with your judge, to persuade the judge to your position, and to capitalize on the other opportunities the hearing provides.
A View from Judge Robert Shuck
Reading me your brief is not persuasive. When you do, I fight the urge to stop you and ask you to also read me the ever-present (and unpersuasive) archaic language typically found at the start of any brief, “COMES NOW THE [UNITED STATES OF AMERICA / THE DEFENSE] BY AND THROUGH COUNSEL . . .”62 Instead, focus your efforts63 on how to make the biggest impact.
Conducting a Premortem
Read your brief, go over your evidence, review your opponent’s brief and evidence, and ask yourself before the hearing, “The judge just ruled against me, why did I lose?” Even better, have someone unfamiliar with the case review the briefs and evidence and ask them why you (hypothetically) lost. Businesses use these premortem thought exercises to identify failures ahead of time.64 Advocates can adapt this process to assist their own preparation.65 I am always surprised at counsel who could not see an adverse ruling coming.
COL Tyesha L. Smith (Credit: Billie Suttles, TJAGLCS)
Spend Time in Argument on the
Evidence Presented
Too often, counsel want to treat the hearing as an appellate argument and focus only on the law, sometimes without ever mentioning the facts of the case. For most preliminary issues, MRE 104(a) allows military judges considerable evidentiary leeway with regard to motions sessions.66 However, just because you can rely only on a CID agent’s field notes, for example, as the sole evidence for your argument does not mean you should. You must convince the judge your version of the facts belongs in the court’s findings of fact. The hearing gives you an opportunity to drive the essential facts home with the judge.
Argue Why Your Evidence Is Better
Use the Military Judge’s Benchbook instruction on credibility of witnesses for inspiration.67 For instance, you could highlight to the judge that the court should use your evidence in its findings because your evidence came from the testimony of a neutral eyewitness, who testified under oath, who was subject to cross-examination, who had an unobstructed view at the time she witnessed the event, and whose testimony was corroborated by other evidence you presented during the hearing. You could then contrast this with your opponent who only offered a photocopy of a CID agent’s field notes, which simply referenced a statement from a witness whose knowledge about the incident came second-hand.
Think Outside Your Own Mouth
Many counsel use audiovisuals when presenting closing arguments to panel members. Consider using them to supplement your verbal argument during the hearing. Does the case involve complicated familial relationships? Make and use a family tree. Is the timing of events crucial to your case? Show a timeline. Does the judge need to apply a multi-factored test for determining admissibility? Display a chart that links the evidence to each factor. Is a key moment during an accused’s videotaped statement to law enforcement important? Play that portion of the interview for the court or publish a transcript of it. Is a physical location important? Print out a satellite image or publish photographs. Is there complicated testimony? Use a demonstrative. Is your judge hesitant to wait for you to set up the technology for the hearing? Print out the slides and have the judge follow along. Use creativity and imagination to persuade the judge.
Fight to Train
A significant amount of litigation effort is spent on motions practice. It seems that counsel do not view motions hearings as significant events. Litigation supervisors rarely attend them. Often the gallery is entirely empty except for a paralegal or two. Nonetheless, a quick review of most records of trial reveals the sheer volume of significant litigation accomplished during these ignored sessions. Contrast this with closing arguments on the merits or findings when the courtroom is usually standing room only. The result is motions practice is an area long neglected and in need of disruption and innovation.
Improving your motions advocacy means you must raise the prominence of motions in your litigation toolkit. You can do so by demanding training focused on motions advocacy. If your judge conducts Bridging-the-Gap sessions, ask if the judge would be willing to provide feedback on your advocacy at the motions hearing. Some judges may even be willing to conduct training focused entirely on this area. Supervisors should not only regularly attend these hearings but also actively critique their counsel’s oral and written advocacy. In turn, this could generate data necessary for them to further identify targeted training requirements for their counsel.
Some Final Thoughts: A View from Judge Tyesha Smith
What a wonderful gift these six judges have now given you—secrets to success in your motions practice. If wisely followed, your motions practice will not only improve, but you will receive one of the best gifts of all: greater, more productive use of your time. Ideally, you will achieve greater results with improved efficiency in your advocacy.
Your time, as well as the court’s time, is precious and finite. In fiscal year 2022, Army courts spent 1,661 hours in just Article 39(a) sessions.68 Think about the gift that has been extended to you: a step-by-step process by the actual audience that you are trying to persuade. But a gift is not a gift unless it is received. This unique gift, if not only received but diligently used, will lead to better motions practice, which in turn will be an exquisite gift to the judiciary and one that will lead to more efficient and just rulings.
On behalf of the Trial Judiciary, we look forward to your success as a trial practitioner. See you in court! TAL
COL Adams is the U.S. Army Reserve Chief Trial Judge and Commander of the 150th Legal Operations Detachment in Alexandria, Virginia.
COL Cook is a Circuit Judge in the Second Judicial Circuit at Fort Liberty, North Carolina.
COL Pritchard is the Chief Circuit Judge for the Fifth Judicial Circuit at the Kleber Law Center in Kaiserslautern, Germany.
COL Shuck is the Chief Circuit Judge for the Fourth Judicial Circuit at Fort Bliss, Texas.
COL Smith is the Chief Trial Judge, U.S. Army Trial Judiciary at Fort Belvoir, Virginia.
LTC Murdough is a Circuit Judge in the 4th Judicial Circuit at Joint Base Lewis-McChord, Washington.
LTC Pond is a Circuit Judge in the Third Judicial Circuit at Fort Cavazos, Texas.
Notes
1. Lieutenant Colonel Jacob Bashore, A View from the Bench: Maximizing the Effect of Your Motions Practice, Army Law., Jan. 2018, at 3, 3. When Judge Bashore wrote the article, he was a Circuit Judge in the 3d Judicial Circuit at Fort Hood, Texas. Id.
2. Colonel Charles L. “Jack” Pritchard, Jr., Chief Circuit Judge, 5th Judicial Circuit, Kaiserslautern, Germany, Remarks During Trial Practitioner Training on Motions Practice in Europe and Kuwait (Oct. 13, 2022).
3. U.S. Army Trial Judiciary, Rules of Practice Before Army Courts-Martial (7 Apr. 2023) [hereinafter Rules of Court].
4. Lieutenant Colonel Michael Korte is a Circuit Judge in the 4th Judicial Circuit at Schofield Barracks, Hawaii.
5. Lieutenant Colonel Michael E. Korte, Bridging the Gap: U.S. Army, Microsoft Teams (Mar. 9, 2022).
6. “Anchoring bias” is “the tendency, in forming perceptions or making quantitative judgment under conditions of uncertainty, to give excessive weight to the starting value (or anchor), based on the first received information or one’s initial judgment, and not to modify this anchor sufficiently in light of later information.” Anchoring Bias, Am. Psych. Ass’n, Dictionary of Psych., https://dictionary.apa.org/anchoring-bias (last visited May 10, 2023).
7. A motion in limine is a request for the judge to resolve an evidentiary issue before trial. This is listed as one of the possible motions for appropriate relief in the Rules for Courts-Martial. Manual for Courts Martial, United States, R.C.M. 906 (2019) [hereinafter MCM]. You could caption this as a “Motion for Appropriate Relief – Preliminary Ruling on Admissibility of Evidence,” but a more straightforward and specific caption is, for example, a “Motion in Limine – Exclude M.R.E. 404(b) Evidence.”
8. For an example of a summary paragraph, see Bashore, supra note 1, at 5.
9. UCMJ art. 31(b) (2016).
10. Bashore, supra note 1, at 5-6.
11. MCM, supra note 7, R.C.M. 905(c) (establishing that the burden of proof for factual issues in motions practice is by a preponderance of the evidence); Rules of Court, supra note 3, r. 6.1, 6.2.
12. Rules of Court, supra note 3, r. 19.8 (“Offers of proof are not evidence. A judge’s essential findings cannot be based on offers of proof.”).
13. MCM, supra note 7, R.C.M. 905(d) (“Where factual issues are involved in determining a motion, the military judge shall state the essential findings on the record.”).
14. If offering documentary evidence, be sure to mark it as a separate appellate exhibit in accordance with the Rules of Court and provide a reference to it in your facts section. See Rules of Court, supra note 3, r. 6.1.1.
15. Bashore, supra note 1, at 7.
16. Id.
17. Judges divide their written rulings with separate “principles of law” and “conclusions of law” sections. This is so we can make a clear record and show what legal principles we applied to the facts of the case in order to aid others in reviewing our decisions. However, you write for a different purpose.
18. Crim. L. Dep’t., The Judge Advoc. Gen.’s Legal Ctr & Sch., U.S. Army, Criminal Law Deskbook, ch. 24, § VII (2022).
19. First Principles: Constitutional Matters: Confrontation, U.S. Ct. of App. for the Armed Forces, https://www.armfor.uscourts.gov/digest/IB3.htm (last visited May 26, 2023).
20. As a general rule, adverbs are usually not helpful.
21. This guidance is greatly influenced by Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008); Bryan A. Garner, The Winning Brief (3d ed., Oxford Univ. Press 2014) (1999); Fed. Judicial Ctr., Judicial Writing Manual: A Pocket Guide for Judges (2d ed. 2013).
22. Brigadier General Charles N. Pede, Communication Is the Key—Tips for the Judge Advocate, Staff Officer, and Leader, Army Law., June 2016, at 4, 6. (“Knowing your audience is imperative, but the axiom remains the same: easily understood in a single reading.”).
23. “Clear thinking becomes clear writing; one can’t exist without the other.” William Zinsser, On Writing Well 8 (7th ed., HarperCollins Pub. 2006) (1976).
24. Roger Traynor, Some Open Questions on the Work of State Appellate Courts, 24 U. Chi. L. Rev. 211, 218 (1957).
25. Scalia & Garner, supra note 21, at 69.
26. See also Bashore, supra note 1, at 7 (providing a wonderful example of signposting).
27. Joseph Kimble, Redlines: The Importance of Signposting – and Following Through, Judicature, no. 3, 2021-22, at 8, 8.
28. Bryan A. Garner, The Elements of Legal Style 193 (2d ed., Oxford Univ. Press 2002) (1991).
29. See also Joseph Kimble, Lifting the Fog of Legalese 7-13 (2006) (remarking that a majority of judges surveyed in Michigan, Florida, Louisiana, and Texas favored plain language over “legalese”).
30. Acronyms “are a prime example of false economy. Rather than speed the reader along, they create a bumpy road, as the reader takes a split second to remember what each one stands for.” Joseph Kimble, Redlines: Another Plea to Hold the Acronyms, Judicature, no. 2, 2022, at 82, 82.
31. Garner, supra note 28, at 231-33. To illustrate this point, Garner uses an example from then-Deputy Solicitor General Frank Easterbrook. The brief’s longest sentence had thirty-one words and the shortest had five, for an average length of fifteen words.
32. See, e.g., Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer 186 (3d ed., Prac. L. Inst. 2009).
33. For example, the following paragraph can be revised from this:
The preferral of charges or the imposition of restraint triggers a Service member’s speedy trial protections under the Sixth Amendment. United States v. Danylo, 73 M.J. 183 (C.A.A.F. 2013). Courts consider the following four factors from Barker v. Wingo, 407 U.S. 514 (1972) [new], to determine whether those protections have been denied [old] . . .
To this:
The preferral of charges or the imposition of restraint triggers a Service member’s speedy trial protections under the Sixth Amendment. United States v. Danylo, 73 M.J. 183 (C.A.A.F. 2013). To determine whether those protections have been denied [old], courts consider the following four factors from Barker v. Wingo, 407 U.S. 514 (1972) [new] . . .
34. Scalia & Garner, supra note 22, at xxiii.
35. See also U.S. Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for Lawyers r. 3-3 (28 June 2018) (“Candor Toward the Tribunal”).
36. For instance, if an alleged victim wrote in his sworn statement to CID that he was stone-cold sober during the incident but later told a friend he was blind drunk, the argument (not the fact) is that he lied. “He lied” should not be in your Statement of Facts.
37. In the novel, To Kill a Mockingbird, Scout says, “Atticus told me to delete the adjectives and I’d have the facts.” Harper Lee, To Kill a Mockingbird 67 (1995). This is not bad advice.
38. Garner, supra note 28, at 521.
39. Scalia & Garner, supra note 21, at 20.
40. See id. at 20-21.
41. Kristen K. Robbins, The Inside Scoop: What Federal Judges Really Think About the Way Lawyers Write, 8 Legal Writing 257 (2002).
42. Id. at 261-64 (emphasis added). “From the judges’ perspective, conciseness is not aspirational, it is essential. Seventy-three of the 355 judges volunteered that the best briefs are concise; 70 said that the worst briefs fail to be concise; and 118 said that conciseness should be taught in law school writing courses.” Id. at 279. Three other themes emerged from the survey, including (1) counsel’s inability to use controlling case law effectively; (2) the value of a “well-organized, tightly constructed brief”; and (3) an appreciation for tone, style, and proper grammar and English usage. Id. at 264.
43. Scalia & Garner, supra note 21, at 81.
44. William Strunk, Jr. & E.B. White, The Elements of Style 23 (4th ed., Allyn & Bacon 2000) (1959).
45. For instance, “with regard to” becomes “about”; “subsequent to” becomes “after”; and “for the purpose of” becomes “for.” Joseph Kimble, Redlines: Zap Multiword Prepositions Please, Judicature, no. 2, 2018, at 80, 80.
46. Richard C. Wydick & Amy E. Sloan, Plain English for Lawyers ٢٩ (٦th ed., Carolina Acad. Press ٢٠١٩) (2005).
47. Benjamin Dreyer, Dreyer’s English: An Utterly Correct Guide to Clarity and Style 14 (2019).
48. For other examples of passive versus active voice, see Strunk & White, supra note 44, at 18; U.S. Dep’t of Def., 5110.04, Manual for Written Material: Correspondence Management, vol. 1, 28-29 (16 June 2020).
49. Fed. Judicial Ctr., supra note 21, at 18.
50. See, e.g., Peter C. Brown, Henry L. Roediger III, & Mark A. McDaniel, Make it Stick: The Science of Successful Learning (2014). The authors, who include two psychology professors, write that one of the cognitive activities that leads to stronger learning is generation—rephrasing key ideas into your own words. Id. at 88.
51. Other than quoting case law, you may need to quote a regulation, rule, or statute verbatim, in which case a block quote may be necessary.
52. For example, a lead-in to a block quote might begin with: “The Court recently addressed this specific issue, determining trial judges have unfettered discretion to bang their gavels, in United States v. Pond:”
53. Julie A. Oseid, The Power of Brevity: Adopt Abraham Lincoln’s Habits, 6 J. of Ass’n of Legal Writing Dirs. 28, 29-30 (2009).
54. MCM, supra note 7, R.C.M. 801(a), Discussion.
55. See MCM, supra note 7, R.C.M. 801(e).
56. See, e.g., United States v. Stubbs, 23 M.J. 188, 195 (C.M.A. 1987) (“[T]rial judges should not let the litigants lapse into a procedure whereby the moving party will state the motion and then launch right into argument without presenting any proof but buttressing his/her argument with the assertion that so and so would testify as indicated, if called.”).
57. Remember that under M.R.E. 104(a), which governs preliminary questions, “[T]he military judge is not bound by evidence rules, except those on privilege.” MCM, supra note 7, M.R.E. 104(a). In this way, evidence at a motions session is not per se excludable on grounds of hearsay, authentication, relevance, and other common trial rules of evidence. Regarding relevance, however, focus your witness on matters relevant to the motion at issue only. Your judge will cut you off if it looks like you are treating the moment as an opportunity to conduct an impromptu deposition or discovery. As well, if the court considers hearsay or something unauthenticated, either side may comment on the reliability of the evidence.
58. Rules of Court, supra note 3, r. 6.5.
59. Admittedly, I am a hot bench during a motions session. Unlike at trial, where I try to sit back and let you try your case, I like to take advantage of my ability to question counsel during motions argument. I find this helps me understand and test the strength of your position. Other judges may take a more passive role during motions sessions. You should, therefore, know your judge.
60. Counsel would do well to ask themselves these questions throughout the course of a case: (1) Do I have blind spots?; (2) When do I want to discover them?; and (3) How will I find them? I will help you with the first two questions. First, as much as you love your case, you have blind spots. We all do, especially the more you are entrenched into the details of your case. Second, the answer is, “As early as possible.” If you can do so before your motions session, great! Discovering them at your motions session is less great. It is still less great to discover them at trial, upon announcement of the verdict or sentence. As to the third question, find someone to run issues by—not only for your motions arguments but also for all aspects of your case. Try this: “Hey [chief of justice with defense experience], can I run my argument by you?”; “Hey [senior defense counsel with trial counsel experience], would you read my brief?”; “Hey, [disinterested NCO], will you let me run my voir dire questions past you?” In so doing, be open to constructive criticism and invite your mentor to help you find the weaknesses in your position.
61. You may have a judge who invites the parties to give uninterrupted oral argument, you may have a judge who immediately starts questioning the parties, or you may have a judge who does something in between. If you know your judge, you will not be surprised when your carefully scripted oral argument gets re-routed.
62. “Traditionally the standard commencements in pleadings, these phrases are fallen into long-overdue disuse.” Bryan A. Garner, Garner’s Dictionary of Legal Usage 176 (3d ed., Oxford Univ. Press 2011) (1987). These archaic phrases still plague pleadings in courts-martial proceedings. Please help stop this practice.
63. To get to the point, some military judges allow you to lead your witnesses during Article 39(a) sessions when the court is resolving certain issues. Ask your military judges their stance on this practice during Gateways to Practice or during pretrial conferences.
64. See, e.g., Gary Klein, Performing a Project Premortem, Harv. Bus. Rev., Sept. 2007, at 18.
65. See, e.g., Lieutenant Colonel Robert E. Murdough, Using Red Team Techniques to Improve Trial Advocacy, Army Law., no. 1, 2021, at 90, 91.
66. MCM, supra note 7, M.R.E 104(a) (“[T]he military judge is not bound by evidence rules, except those on privilege.”).
67. U.S. Dep’t of Army, Pam. 27-9, Military Judges’ Benchbook para. 7-7-1 (29 Feb. 2020).
68. Data available on file at the Army Court of Criminal Appeals.