How to Write a Motion, Serve It, File It and Argue It - in All 50 States

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How to write a motion, serve it, file it and argue it - in all 50 states.

This page is: http://www.lawyerdude.netfirms.com/6025.html and http://www.fu.gq.nu/6025.html

Please be sure to visit “Briefs 101" at http://www.lawyerdude.s5.com/6435memo.html

My Empowerment Link to download over 100 winning motions from 20 winning pro se litigators: http://www.circuitlawyer.8m.com/traffic.html

My most aggressive motions were the ones that I wrote for Steve Bloomer a/k/a His aggressive motions are at: http://fu.gq.nu/Steve762.html

Please join my newest Yahoo group for discussion or legal self help litigation. Here is the link to the link: http://www.lawyerdude.8k.com/6346.html

General Approach to Winning cases: http://www.lawyerdude.netfirms.com/7260.html

Motion Writing 101: Fundamentals and Illustrations.

The pen is mightier than the mouth! The spoken word carries impact at the hearing, but the written word carries more impact for the judge reading the file - and for the court of appeal - although they may or may not read the transcript. You need BOTH written and oral words. If you want, you need only tell the judge what you want, but you have already written that in your Proposed Order, so tell him that what you want is spelled out in your proposed order.

Table of Contents:

Part 1: Planning your motions:

Don’t reinvent the wheel: Here are the top 20 Criminal motions:

Part 2: Elements: Every Motion should contain the following elements:

Optional Elements to a Motion:

Serving the papers

Filing the papers at the criminal filing window

Common Problems. Turn these lemons into lemonade

Examples of Winning Motions

Common Attitude problems with clerks when you file Motions

Appendix: Related pages.

Self help litigation medley of pages to help you learn and write better

The leading 143 cases that define criminal procedure:

Medley of cases defining your 6th amendment right to effective assistance of counsel - appointed if necessary.

Medley of cases regarding your Faretta right to speak for yourself and the standards for performance of the public defender.

Medley of cases defining your right to a free transcript if you can’t afford to pay:

List of the 20 Most Frequently Used Criminal Motions is at:

Part 1: Planning your motions:

If I am writing a motion for you then please tell me when your hearing is. Please remind me every day to write your motion! Ron Fox suffered 90 days in jail because we filed the motion at the last minute and got stuck with a blind judge who acted up. Part of briefing and de-briefing is writing down your next court date and planning when to write the next motions. Remember the O.J. trial? All their motions were on television. Judge Lance Ito did not jam them up for motions; your judges should not jam you up either.

1. Most motions are oral/ spoken ! (Not “verbal”. “Verbal” means “written or spoken”.) Public defenders and all litigants are fast movers. This works well if you are not concerned about the case. If you want to win then slow down and spend a year on the case and put your stuff in writing!

2. Ideally the motion is written 2 months before it is heard. You will waive time for your speedy trial. However, if you are writing a motion where you don’t have 2 months or even a week to spare, well then you may need to ask for an order shortening time.

3. PC 1050 requires 10 days notice - but the judge can waive that requirement and often does.

Don’t reinvent the wheel: Here are the top 20 Criminal motions: http://www.lawyerdude.8k.com/motions.html

Be sure to click on http://www.lawyerdude.8k.com/motions.html to find a list of the most frequently used criminal motions. The list links to specific motions that you can copy and use for your similar motion.

Part 2: Elements: Every Motion should contain the following elements:

These are listed in order of importance. The judge and clerk will look for you signature and proof of service. They are the most important items. The clerk will look for your proposed venue so that she can calender is in the court’s computer system.

1. A word about paper. Once again the internet has made us free. Due to the internet, most federal and state courts have eliminated the requirement for “line and numbered” paper. This makes life easier for you. WordPerfect and Word can both make the lines and number for you, but thankfully you don’t need that anymore. The problem arose in converting from WordPerfect to html. The numbers simply printed themselves as a row of meaningless numbers from 1 to 28.

2. Give your motion a number and a name: This is my rule. No court says this, but it is important. Give the motion a number and a name up front. The numbering system is discussed below. The name of your motion comes from:

a. What you want to achieve. Example : “Gimme back my car” motion.

b. The name of the case that supports your motion. Example: Miranda motion. See my list of the most frequently used motions:

3. Proof of service. The clerk looks for a proof of service. So does the judge; and he will deny your hearing unless you have one. You can make one on the spot of you can remember the details of service. It is best to write the proof of service with the motion so that the process server can fill in the forms and sign it as he serves the paper.

See a sample proof of service here: sample5.jpg Most lawyers waste a sheet of paper on the proof of service. Some lawyers have a tidy little rubber stamp. I prefer a paragraph at the end of the brief - but before the list of exhibits.

You can serve all motions by mail, generally. You can also serve em in person. Somehow you must get a paper copy and/or fax and/or email of the motion to the prosecutor and to the filing window at the traffic/ criminal court. You should also send and/or deliver a courtesy copy to the judge. If you observe, I always write the proof of service on the motion. That way the court knows that the motion has been served. It is not necessary to fill out the proof of service on the copy that goes to the prosecutor - but it is good practice - or not. More specifically, you have th proof of service already written except for the last remaining details. Then you file the motion (without a file stamp) on the prosecutor. Now, having served the prosecutor, you can file a copy of the motion with the proof of service filled in - because you have already served the prosecutor. Take along 3 or 4 originals to the filing window - or mail em. You can make an original by affixing your original signature to any copy. The clerk will keep 1 or 2 and give you back 2 or 3 file-stamped copies.

4. Venue. Time + Date + Place = Venue. See example here: sample4.jpg Notice of the time, date, and place of the future hearing on the motion. Set motions on Tuesdays or Thursdays to avoid waking up Monday too late to get to court. Set motions 4 to 8 weeks down the road. You control the setting of the motion. You may want to call the court to see when they are heard but they are usually heard at 8:30 or 9 every day of the week.

5. Signatures: The clerk will look for your signature at one or more places. The clerk always looks for this. The court won’t accept a motion without a signature from you or your lawyer. Also, somebody must sign the proof of service. Some clerks fuss about an “original signature”. You can make any signature “original” by signing it again - above, below, whatever. Generally speaking it cannot be you. In the following chart I am NOT saying that you must sign at all of the places listed. Make sure that you and/ or your process server and/ or lawyer sign at one or more of these places:

These signature locations are listed in order of importance. You need not sign at each of the designate places, but do indeed sign at each place where you have printed a signature line. I have written motions where the party signed at only one place plus the proof of service. Don’t leave unsigned signature lines; the clerk will find them and you can sign them at the window. If you have a signature line at each of the top 5 places signed then you won’t have a problem:

a. After the proof of service.

b. After your “notice of motion”.

c. After your declaration if you made a declaration.

d. After your lawyer’s declaration if he made a declaration.

e. At the end of your “Memorandum of Authorities”.

f. After your “demand” .

g. After your “argument”.

h. At your “Waiver of time”

There are around 100 sample motions linked to my Empowerment page at http://www.circuitlawyer.8m.com/traffic.html

6. Your complete contact information in the upper left corner. Include your name, address, phone number, cell phone number, email address, web site URL, etc. If you are paranoid, then get a post office box number. Here, look at this page for an example: sample1.jpg You are not obligated to reveal any secrets. If you don’t want to state your telephone number, well that is okay. There are around 100 sample motions all linked to my Empowerment page at http://www.circuitlawyer.8m.com/traffic.html

7. Proper caption. Name of the court starts at line 8 according to court rules. Be sure to write all the phone numbers, email addresses, web site addresses and addresses for all parties including the court. Use the "columns" function to make the caption. Most people don't. If you are using "Microsoft Word" (inferior to WordPerfect by a mile) they have a preformatted caption. You can use that for most situations. I have encircled the caption on this sample here: caption.jpg

a. Special note: Do not waste time making columns in the caption ! You can make fake columns. I use WordPerfect. It can make columns, but when I convert to html, well, those columns disappear because html cannot make columns - and neither can many of you who need to write motions. Here is a trick I will share with you: make fake columns. The right is simply lower than the left. You simply change the margins. Here is a picture: sample4.jpg See? They are not columns. They are sequential paragraphs. One is below the other, but they give the appearance of columns. There are around 100 sample motions all linked to my Empowerment page at http://www.circuitlawyer.8m.com/traffic.html

8. "Memorandum of Points and Authorities" also known as a brief. Most lawyers file this as a separate document. The “authorities” are the heart of your Motion. I have a separate page explaining how to write a brief. This page is called “Briefs 101: How to Write a Memorandum of Authorities” : http://www.lawyerdude.s5.com/6435memo.html Please go there to learn how to write a brief, but for right now, here are a few things to know:

a. You should use cases and statutes and other authority that support your motion. Here is a sample of a “Table of Authorities cited in this Brief” : sample19.jpg

b. When you quote from a case, change the margins so that the quotation stands out on the page. Here is an example: sample6.jpg See how the indented quoted text stands out on the page? Most people add 1 inch to the left margin and 1/ 2 inch to the right margin. I prefer to add 1 and 1.

c. If you have more than 8 cases and statutes in your brief then you should make a table of authorities. Here is a link to an example of such a table of authorities: sample19.jpg

9. Proposed Order. The court clerk in Southeast Texas refused a motion because it did not have an order attached. This proposed order let’s everybody know what you want. It makes life easier for the judge. This proposed Order should be on its own page. See my example at the end of the motion at the following link: http://www.lawyerdude.8k.com/6279.html Jackie Blystone’s series of motions is a good one. It is here: http://www.lawyerdude.8k.com/6508.html

10. Declaration under penalty of perjury. Sample: sample13.jpg This sample is on the web at http://www.circuitlawyer.8m.com/5584.pdf Judges love declarations! They want to know what is happening in this case. They want to know the story - told under penalty of perjury. They don’t want hearsay - but often the lawyer knows fact of his own perception - such as the character of the defendant. Declarations can be written by the lawyer. Better if it is from the litigant sui juris. Explain the reason for this motion. This is your opportunity for your lawyer to tell some facts about the case and make you look good.

11. Document identification serial number for your own computer filing system. About 10 years ago I began numbering all my documents. Example: sample1.jpg (Look for “Document I.D.” along right side) I keep a log of all the documents. I give each document a number. You can start with #1 or you can start with #1000. I know of no other lawyer who does this. Eventually they will follow me. If you want to have fun then do this. The judge will inquire about that number. It looks foreign to him. Just tell the judge the following:

“Your honor, that serial number is an internally generated serial number designed to coordinate my computerized filing system. It makes the document more easily retrievable on the internet and it makes it easier for you, your honor, to designate this document precisely by simply using this 4 digit number plus the extension that designates the version number. Everybody should do it. I am just a little ahead of the folks in the state bar.”