No Form Motions

Motions and Written Work in Criminal Trials

If the prospective client wants flat, predictable, unimaginative, and uninspiring written work, then turn to other lawyers. The written work becomes one step in "processing" a case: the motion for a bill of particulars is made (for example), unenthusiastically; the government's desultory response is prepared by changing the names and caption on a previous response to such a motion, itself a hodge-podge of still earlier work; the magistrate judge identifies the motion as one to be denied without reading it to the end, for it is numbingly familiar, and the reasons for denying it do not matter. As a matter of habit and custom, the magistrate judge is acculturated simply to denying such things; a dispirited two-paragraph objection is filed; the government never seriously considers responding to that objection, confident by experience in the judiciary's willingness to do the prosecutor's work; and the district judge reads none of the various dry documents before adopting the magistrate judge's recommendation or affirming the magistrate judge's order on a non-dispositive issue such as the bill of particulars. So if the client believes it necessary only to fill the defense lawyer's meager role in this "processing" sequence, he would assign an associate who knows little about the case, or about trying cases in general, to do the written work. The client making this choice will save money.

If, on the other hand, the client is interested in winning or in losing with dignity, he seeks instead lawyers with extraordinary interest in and aptitude for studying law, undertaking the trial of lawsuits, and challenging judges in district courts and appellate courts to think and to strive to meet the promise of their office.

That prospective client then commits himself to providing recompense for the unusual lawyer's best efforts to bend themselves to the joy of intellectual pursuit, to unraveling the threads of injustice, to presenting with grace and whimsy various of the inanities of legal rules as they are in a sophisticated effort to shame even a judge into action, or to inviting judges to join in the effort to solve one or more of law's genuine puzzles. That unusual lawyer also may identify confidently the nub of what he needs to try the case, or to make the trial a bit more fair, after exhaustive review and consideration of discovery materials from the perspective not just of someone who has been assigned to read of the discovery. So that they can announce it has been read, but rather from the perspective of someone who intends to argue with sincerity to twelve people that they ought acquit the unfortunate client. The client making this choice will not save money. He may save himself, but he will not save money.