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Captain Justice
November 3, 2013 10:06 AM   Subscribe

Stop calling the DA "the Government!" it hurts her feelings or something. The defense responds..'Should this Court disagree, and feel inclined to let the parties basically pick their own designations and ban words, then the defense has a few additional suggestions....defense counsel does not wish to be referred to as a "lawyer," or a "defense attorney." Those terms are substantially more prejudicial than probative. See Tenn. R. Evid. 403. Rather, counsel for the Citizen Accused should be referred to primarily as the "Defender of the Innocent." This title seems particularly appropriate, because every Citizen Accused is presumed innocent. Alternatively, counsel would also accept the designation "Guardian of the Realm."'
posted by caddis (24 comments total) 37 users marked this as a favorite

 
This makes the list of all-time epic motions.
posted by joedanger at 10:13 AM on November 3, 2013 [1 favorite]


In all fairness, when I was practicing defense, we started filing motions to stop prosecutors from referring to themselves as "the People." No court ever granted it, as far as I know!

I draft opinions now, and I still prefer not to use that term.
posted by mikeand1 at 10:32 AM on November 3, 2013 [1 favorite]


Love this part:

Along these same lines, even the term "defense" does not sound very likeable. The whole idea of being defensive comes across to most people as suspicious. So to prevent the jury from being unfairly misled by this ancient English terminology, the opposition to the Plaintiff hereby names itself "the Resistance."
posted by mediareport at 10:41 AM on November 3, 2013 [9 favorites]


CAPTAINNNN CAVEMAAAAAAAAN JUSTIIIIIIIIICE!
posted by infinitewindow at 10:47 AM on November 3, 2013 [1 favorite]


How did the judge react to this?
posted by Sticherbeast at 10:53 AM on November 3, 2013


From the blog post it appears the judge rejected the AG's request. Looks like it was a written motion, the video would certainly go viral.
posted by sammyo at 11:00 AM on November 3, 2013


Slaying. You really only get this a few times. Where your client's needs are best met with putdowns before the judge.
posted by Ironmouth at 11:13 AM on November 3, 2013 [1 favorite]


Objection!
posted by The Great Big Mulp at 11:46 AM on November 3, 2013 [3 favorites]


Yeah, what I'm thinking is, all our appreciation would be turned to disgust if one person, the judge, had approved the prosecution's request and rejected the defendant's, on whatever grounds he saw fit, because lots of great arguments get rejected every day, either due to idiosyncrasies of judges, the details of the case, or just bloody-minded bias. It's certainly happened plenty of other times. See FISA.

It's easy to forget that even arguments that seem excellent, spoken before unreceptive ears, are wasted. And there seem to be a lot of unreceptive ears around these days.
posted by JHarris at 11:46 AM on November 3, 2013 [1 favorite]


This makes the list of all-time epic motions.

It's very good, though I think my favorite remains the Motion for Fist Fight (PDF), not least because of the prosecution's response that they would do well in a fight (while calling the motion unethical).
posted by dsfan at 12:42 PM on November 3, 2013 [9 favorites]


My favorite motion doesn't really count. It was in law school, in mock trial. A law student made an unironic, not-a-joke "motion for business casual." His team did not win.
posted by Sticherbeast at 1:00 PM on November 3, 2013 [1 favorite]


Too many motions written late at night make attorneys punchy.

The problem with the Motion for a Fist Fight is that the defense attorneys resort to humor in a situation where the response will let the prosecution take the high ground. They really are acting unethically, even if the prosecution has been making a pretty weak claim repeatedly.

The Captain Justice motion has both law and *ahem* justice on its side, so the move to humor is just the coup de grace.
posted by anotherpanacea at 1:26 PM on November 3, 2013 [1 favorite]


That's why most prosecutorial entities I've heard of like to call themselves "The People"... "The People vs. Criminal Guy"... hey, I'm not his victim in the crime allegedly committed; keep me out of this.
posted by oneswellfoop at 1:34 PM on November 3, 2013 [1 favorite]


My wife typically refers to her role in prosecution as 'The State'.
posted by grimjeer at 2:01 PM on November 3, 2013


In some parts of the country "the Government" is portrayed as bad, something to be deprecated, certainly by local media and pols etc. Should the jury really listen to the "Government" [spoken in a Bill O'Reilly sneer]?
posted by caddis at 2:08 PM on November 3, 2013 [1 favorite]


Yeah, what I'm thinking is, all our appreciation would be turned to disgust if one person, the judge, had approved the prosecution's request and rejected the defendant's.

Why? I would prefer that the case be decided on its merits, and not on the jurors' biases against "The Government".
posted by rocket88 at 2:18 PM on November 3, 2013


Apparently, Captain Justice was best man at the wedding of a guy who went to my high school a couple classes behind me (said guy posted this on facebook, justifiably proud of his friend, and his choice in best men).
posted by ocherdraco at 2:24 PM on November 3, 2013 [1 favorite]


I would prefer that the case be decided on its merits, and not on the jurors' biases against "The Government".

Captain Justice, defender of the realm, leader of the resistance (all hail!) would also prefer that the case be decided on its merits, and not on the basis of the jurors' biases against "lawyers" and "defendants." Those biases are at least as real.
posted by justsomebodythatyouusedtoknow at 2:42 PM on November 3, 2013 [2 favorites]


Captain Justice may have found the DA's motion really silly (and it certainly sounds silly, though without seeing it, it's kind of hard to say). But except in the case of REALLY offensive behavior on the part of the other attorney -- which I personally am not sure the DA's motion constitutes -- this kind of showboaty, self-congratulatory writing submitted to a court makes the lawyer feel really good but does nothing for the client, and risks pissing off the judge. Maybe Captain Justice knew the judge, and knew the judge would love it, in which case, sure. But there are judges -- not all, but some -- who would read this motion and conclude he was an unserious, self-involved smartass, and that could have consequences for the client. Some judges love nonsense. Some judges emphatically do not.

This is fun and entertaining as a piece of writing, I agree. But boy, if there's ever been a job that's not about you, being a criminal defense attorney is it. The really good lawyers for my money are the ones who can get their licks in in spectacular fashion without making it appear quite so obvious that they're standing back and admiring their own wit. That, when done well, is a beautiful, beautiful thing.
posted by Linda_Holmes at 3:57 PM on November 3, 2013 [2 favorites]


Imma let Captain Justice finish, but this Motion to Change the Facts is clearly the best defense motion of all time.
posted by decathecting at 4:32 PM on November 3, 2013 [1 favorite]


This makes the list of all-time epic motions.

"The motion which Plaintiff filed was entitled 'Motion to Kiss My Ass' (Doc. 107) in which he moved 'all Americans at large and one corrupt Judge Smith [to] kiss my got [sic] damn ass sorry mother fucker you.'" Washington v. Alaimo, 934 F.Supp. 1395, 1396 (1996).
posted by The Bellman at 4:36 PM on November 3, 2013 [1 favorite]


My favorite epic motion was when the defense filed a motion for a restraining order but ran it through autocorrect (when the attorney had frequently typed "odrer") and it asked repeatedly for a "restraining ogre." Plaintiff's attorney (who is a friend of mine) responded with a motion outlining how a restraining ogre was cruel and unusual punishment under the 8th amendment, and also imaginary.

My second-favorite epic motion was a local case where the defense demanded the plaintiff's attorney quit wearing his shoes that had a hole in the bottom, because he kept going off on folksy tangents where he'd be all, "Now, I may not be a big-city lawyer like these guys ..." and deliberately walk so that the bottom of his shoes flashed the jury with holes in them. Plaintiff's attorney insisted that they were his lucky shoes and he wasn't wearing them to make a point, just for luck. Defense insisted that he ONLY wore them to make a point and introduced evidence that he deliberately put holes in new shoes and scuffed them up to look old so he could show them off to the jury as part of his folksy persona. It was pretty great. (The judge let the plaintiff's attorney keep wearing his shoes but ordered him to stop walking in a strange fashion that showed his soles to the jury on purpose.)
posted by Eyebrows McGee at 5:20 PM on November 3, 2013 [11 favorites]


Captain Justice may have found the DA's motion really silly (and it certainly sounds silly, though without seeing it, it's kind of hard to say).

The government’s motion (via The Volokh Conspiracy's post on this defense response).
posted by RichardP at 6:30 PM on November 3, 2013


Funny stuff. Sent this off to my daughter who's an Assistant PD in New Mexico. Hope she gets a laugh--sure sounds like she needs it as the job is pretty stressful.
posted by BlueHorse at 8:32 PM on November 3, 2013


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