May 23, 2018
Top Ten Practice Points in Military Justice Motions Practice
1. Avoid the Temptationto Cut and Paste (or to encourage others to cut and paste) from a Motions Bank
Unless you wrote it (and maybe not even then), how can you trust that a document uploaded to your local office’s database or even the Trial Counsel Assistance Program or Defense Counsel Assistance Program is accurate? Placement on those sites does not mean that they have been vetted or that they are endorsed by any agency.
The preparation of the motions is as important as the litigation. Unless you have researched the case law, written the standard, or ruminated over the factual application of cases to your case, you are setting yourself at a disadvantage for motions litigation. Do the work. You’ll become a better motions writer for it, you will be more prepared to understand what facts are important for the military judge’s decision, and you’ll be better positioned for oral argument.
2. The Place to StartDrafting / Conceiving of a Motion is by answering the following questions in drafting the Prayer for Relief:
A. What is the ill / what is the harm?
B. What is my desired remedy?
A close but related third question is to verify:
C. Does the military judge have the authority to grant that specific desired remedy?
Help the judge help you! Figure out what you are asking for and then phrase it in a way that tells your judge clearly and concisely what you want him to do.
At a promotion party for a military judge in front of whom I frequently practiced, the judge genially announced that he enjoyed reading my motions. I awaited the “rest of the story.” He continued that he appreciated that he never doubted what it was that I was asking for, that I had the ability to clearly set out what it was that I was asking for, which, he joked made it easier to set out exactly what it was that he would be denying. Joking aside, he complimented what would seem to be obvious, that in motions writing it is critical to spell out what exactly it is you are asking for in conjunction with the grounds, legal basis, and authority the military judge has to grant it.
3. Consider Multiple / Alternate Prayers for Relief
Often in motions practice, the primary request for relief is significant and grave such as dismissal or abatement. Remember that there are multiple other forms of relief that you can ask for in the form of alternative prayers for relief.
4. Next Step is to Find Authority (NOT SECONDARY SOURCES YET)
The rules set out the grounds for appropriate relief, whether it is for a motion to dismiss, a motion to suppress, a motion to quash a subpoena (yes, that exists in military practice), or for any other appropriate relief. The key to this analysis is what is “appropriate” under the circumstances, which means what is grounded in the rules as an available remedy and then why under the circumstances of your case, it is justified.
5. FACTS, FACTS, FACTS
My mentor in the Corps emphasized that in military justice motions practice he, as the military judge, knows the law, but he needs me as the trial practitioner to tell him (and to prove to him) the facts.
From the General to the Specific
When organizing the facts section to any motion, it is important to begin from “the general”, which almost always begins with the nature of the charging in the case, or at least which charge(s) relate to the prayer for relief which you are seeking. Then insert facts that more particularly relate to the particular motion.
When writing the facts section, also ensure you change paragraphs at least as often as you change the sources you cite for the facts in a given paragraph.
6. Choose the Right Tone for each section in motions writing. DO NOT lose credibility at the outset by writing “facts” in a non-neutral manner. Write the facts section in a fair and neutral voice. The facts section is not an opportunity to incorporate your opening statement. Write declarative persuasive statements for each premise and sub-premise in the organizational structure of your motion. See Number 8 below for more.
7. Evidence for Motions – Actual Evidence is Required for Motions Practice
Practitioners hear again and again that their motions are not facts, but I am not certain if that message is clearly understood. Every fact from your facts section in your motion requires evidence to substantiate the proposition. The military judge requires evidence upon which she can make a “finding of fact” and to do so by a preponderance of the evidence. The easiest way to provide evidence of each fact is to use written enclosures. Other forms of evidence can include sworn affidavits and telephonic or live testimony.
Stop duplicating enclosures. In motions practice, often several paragraphs from a given facts section applies to more than one motion. Instead of attaching the same enclosure to more than one motion, reference the enclosure and the motion to which it was appended. For example, SeeEnclosure 2 to Defense Motion for Appropriate Relief – Admit M.R.E. 412 Evidence, CID AIR dated 2 July 2016, P. 2 of 3.
8. Frame the Organization of the Motion Persuasively (organize it around the legal standard)
Use sub-headings for organization. After having defined what is the legal standard and what facts are relevant to apply to that legal standard, create the framework within the motion around that standard. Make a declarative statement surrounding that legal standard. For example, The Defense Proffered Evidence is Relevant; The Defense Proffered Evidence is Material; and so on.
9. Conduct Actual Analysisand Avoid String Citations without application
The argument format that conveys the clearest message is one that ascribes to the following “P-SAC”© format:
Premise – What do you need the military judge to conclude in order to grant you the requested remedy?
Support – What are the rules and cases that support your premise?
Analysis – How do the FACTS of your case fit the support you provide to lead the reader to conclude that your premise is valid?
Conclusion – Applying the FACTS of your case to the supporting rules and cases, your premise is the right result.
10. Avoid Lodging Ethical Allegations without support / clearance from higher & Only Make Appropriate Requests for Sanctions(often, a separate issue)
Start out from the position that whatever ill you are attributing to the opposing counsel was born of ignorance or negligence, as opposed to malice and malfeasance. In the heat of litigation and the passion you feel in representing your client (whether the accused or the U.S.) it can become tempting to lodge ethical allegations before stepping back and weighing the factors. As you consider the implications, ask yourself, “how does lodging this ethical allegation provide relief or advantage to my client?” If the answer is it will not, then that may inform as to whether or not the allegation should be lodged.
Understand that I would never suggest you pull a punch for fear of being unpopular. I am encouraging practice with intention and deliberation, instead of being reactionary and raw.
How To Draft Motions In Military Practiceby Jocelyn C. Stewart, Chief Executive Officer, Law of Jocelyn C Stewart, Corp.
April 2, 2018
There is a gap in minimum requirements for civilian practitioners in military justice practice. And though there are training conferences and tools for uniformed military practitioners, there is a gap in an outline of minimum requirements for military justice practitioners (JAGs or JA’s or Judge Advocates) to practice as well. I hear there are discussions to outline minimum requirements and benchmarks, but that so far those considerations largely have focused on requirements for prosecutors. Because let’s face it, no one leading the charge on behalf of the government is concerned with the defense. Though they should be.
I recall the first time I swore the oath as a civilian practicing in a court-martial in 2012. I remember thinking that all I needed in order to appear on behalf of a servicemember was that I was licensed in some state and in good standing, and I remember being confused by the lack of additional requirements. That was it then, and that remains the only requirement today. In the state where I hold my license to practice law, Louisiana, so long as I do not practice Louisiana law, I do not have an annual continuing legal education requirement. At all. I am certain that other states have similar waivers. There is no current requirement for civilian practitioners to meet any military specific continuing legal education hours. The only way that I remain current on military justice practice is by committing myself to staying current. There are no watchdogs to make sure that I do; there are no written policies that demand more. Theoretically, the uniformed defense counsel detailed to any given case can act as a safety net to ensure that I do not flounder about. When military counsels themselves are inexperienced and new, who is there to ensure the accused is protected? The answer, at least until now, is no one.
Years ago in 2008 when I was practicing in uniform as a defense counsel at Fort Hood, our office saw numerous civilian practitioners flow in and out of trials. Some were competent, though others were not. Many relied on the military defense counsel to do all of the work so that they could collect a paycheck and be on their merry way. On one occasion, I knew of a military counsel that was forced to oversee every move made by the civilian defense counsel. This civilian had never practiced on active duty or even in the reserve component of any service branch. He did not know military procedure and routinely erred. Weeks later, we learned that he was to be disbarred in Texas, and later was. When there is no crossover between jurisdictions (as between Texas and the military), problems happen. When there is no requirement for annual continuing legal education seminar hours that are specific to military practice, the accused suffers.
Every day, military members go in search of suitable civilian practitioners. Rightly or wrongly, there is and likely always be a skepticism by some military accused and their families that the uniformed defense counsel does not solely have their best interest at heart. Often, there is concern for their lack of experience. Armed with Google and a smartphone, military accused goes to the World Wide Web in search of competent and zealous representation. With funds being expended for flashy websites and touted accolades (that likewise are not policed for unethical representations), servicemembers make their best guess at whom should lead their court-martial defense. Sadly, military defense counsel are precluded by regulation from giving any feedback on their choice. There is an expression among uniformed defense counsel (and maybe prosecutors) that captures when the accused chooses poorly; they are known as “pretrial fines.” It literally is self-induced punishment to that servicemember to hire incompetent counsel; he is throwing away his money and he is placing his trust in someone that can do little for him.
With prosecutions for sexual assault allegations taking so much of today’s military court-martial court time, the stakes are too high to allow lax standards to continue. It is time for change. It is time to “raise the bar.” And that is what I intend to do through this organization.
When I have broached the subject of launching this non-profit organization with others, some in the industry and others not, I was met with questions as to whether or not it was in my best personal financial interest to “raise the bar” of others’ ability to practice. Won’t that hurt my practice, they ask. The fact is, I frankly do not care. As a practical matter, there will always be those that find value in my particular skill set and in the attributes that I bring to a member’s defense. And frankly with Congressional interference and the constant tinkering of Article 120 and the Military Rules of Evidence, I envision my job security will continue to exist. But what I cannot condone by my silence any longer is the fleecing of our members that is occurring when incompetent and unethical civilian practitioners appear on their behalf. What I cannot allow to continue is members being made to feel that they must plead guilty because their inexperienced military defense counsel feels better about it, less nervous to confront a contested case. I cannot read another record of trial where good issues are waived because the counsel failed to object. I cannot hear another question from a uniformed counsel in the field that wants my advice about what to do when it is so clear that the hired civilian counsel has no idea what he is doing. I cannot stomach another story where a civilian practitioner lied to his client about submitting an alternate disposition, telling him it was turned down when, in fact, it had never been submitted to the convening authority. I just cannot.
So, here we are. The International Association of Military Defense Lawyers intends to fill the gap, to advocate for change, and ultimately to “raise the bar” in military justice practice. Our servicemembers deserve better. I hope you will take up the cause with me. I entreat you to help in our grass roots efforts for change. I trust you want what we do: the best possible representation for each and every military accused. They deserve the very best and we intend to ensure they get it.