Should you file motions and when

I have practiced law now for thirty-five years, or so. I have tried hundreds of jury  trials. I have tried everything from the most- simple crimes to the most complex that any  attorney has had to deal with. Representations have even taken me into South America for a client. I have observed many things throughout this time that is valuable for all. The  foremost is that of motion practice. Let me share some thoughts.

Local Judicial Disposition 

Here in Lake County, Florida motions have a chilling impact on the defense. Not  verbally, but results of hearings can have a discouraging impact. Recently, I reviewed a  docket of one judge. There were approximately thirty felony offenses set for trial. Four  motions in total had been filed by separate defense counsel. I reviewed each one. Two  were motions to substitute counsel. A third was a motion requesting DNA confirmation  (a simple entitlement) per law. The fourth was my motion. A complex motion dealing  with multiple suppression issues of digital data approximately thirty pages. My hearing  was set for 2.5 hours. How was it that the defense had been discouraged I asked.

Well, outcomes have a impact on defense. Should the defense be continually  denied, the private bar says, “why bother.” What can cause this result? Unfortunately, no  judicial, or elected position is immune from public criticism. Could it be the fear of public  reprisal that effects a judge to lean a particular way? Could it be the time imposed that  impacts the courts? Could it be the fear of mistake, or taking a judicial position that may  have lasting effects on others? I believe that such factors can impact a court. In the end,  it lessens faith within the system and attorneys veered from the zealous attitude which  the Bar imposes upon us. Should I be wrong in this assumption can be addressed by the  volume of reversals on appeal.

Why You Should File  

Your Motions  

Regardless of the courts, and the fear of denial, the defense should seek to  aggressively file motions for more than one reason. First, to comply with the canon of  professional conduct that we zealously represent the accused. This is an obligation!

Second, if not raised below we can destroy all arguments on appeal. You may raise  the issue at trial, however, some issues must be raised pre-trial. Further, if the court denies  a motion at trial the written motion contains all the authority and argument therein to  renew the matter if later taken up on appeal. Should you try to make an extensive  argument during the trial, you can expect to be cut off and informed that you needed to  file the motion in advance of trial. 

Third, if not undertaken you surely run the risk of your client claiming ineffective  assistance of counsel. When motions can and are undertaken, you surely lessen such risk.  I have even had attorneys from other courts in other states that discovered my motions  and plagiarized them contact me. I have only later received a call with thanks and  gratitude. One attorney in South Florida called to advise me he had used my motion and  had either 12 or 13 Federal cases stricken. They thanked me for use, and informed me  they were effective. I thought to myself, “well, I wonder how often this guy does on his  own?” While proud of the fact, I never collected a dime from that attorney. However,  those attorneys do run the risk of grievance and surely cannot feel so proud of their  actions.

Fourth, you make the Prosecutor think. They know in advance of trial, should you  appeal they may loose the argument on appeal which may have a long term impact on  their office. Thus, many times in advance of trial the Prosectors have come to me with an  offer better than before. I can’t help but assume their motives were in-deed influenced by  motions filed. Possibly, but maybe not. Anyway, it all helps to benefit your client.

The Appellate Court  

And Motions  

Should your case end up on appeal, it is highly likely to fall into the hands of an  outside attorney. Sadly, that attorney may not be as experienced. That motion may  provide the debt of insight he needs to create the detail of his brief that your client may  desperately need at that stage. Likewise, the appellate court is able to review the motion

separately, and the arguments contained therein. All separate from the verbal record you  developed below. Think about that.

Legal Analysis  

I love motion practice. It gives me a chance to sit back and micro analyze my case.  It makes me think through the entire case as I do so. It renews my knowledge of the law  continually. When we at least analyze motion possibilities, we renew our knowledge back  to the foundation. We can start with the factual analysis. Second, think about the law.  Third, address is a motion mandatory, some again must be raised such as an objection to  a proposed business record certification. Motions to dismiss must contain all arguments  not some. Fourth, we have to analyze the proper motion mechanism. While some may be  able to be raised in a motion to dismiss, it may be more appropriate to deny the State the  ability to file a bogus traverse. By recharacterizing the nature of the motion you may  defeat the State at the outset. 

Even if you don’t have the time, you may request your client to advance sums for  a legal memorandum on the topic. Thereupon seek to outsource the project. Get an  opinion for your case by a contract attorney.

Never make the job easy for the State. 

Jeffrey W. Wiggs, Esq.

307 N. Barrow Ave.

Tavares, Fl. 32778

#0766186

Ph: (352) 253-0100

(352) 430-6274

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