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Awful Tasting Wine: Unscrupulous Motion Practice

February 11, 2019

“Some martial arts are very popular, real crowd pleasers, because they look good, have smooth techniques. but beware. They are like a wine that has been watered. A diluted wine is not a real wine, not a good wine, hardly the genuine article. Some martial arts don’t look so good, but you know that they have a kick, a tang, a genuine taste. They are like olives. The taste may be strong and bittersweet. The flavor lasts. You cultivate a taste for them. No one ever developed a taste for diluted wine”

 

― Bruce Lee, Tao of Jeet Kune Do (1975)

 

Cover photo for Tao of Jeet Kune Do (1975)

 

The same can be said about a skilled criminal defense attorney. The “real deal,” “genuine article,” criminal defense attorneys don’t use gimmicks, ploys, or flashy stunts to effectively represent their clients. A good and ethical attorney analyzes the necessity of filing a specific motion based upon the known facts and the applicable law. These motions should never be filed arbitrarily or capriciously, or as a matter of course. “Boilerplate” or form motions without any thought of how to individually tailor the motion is legally reckless. These are important strategic decisions that require forethought and skill.

 

Think of it this way: would it be acceptable for your doctor to talk you into taking a series of medical examinations only to have the doctor not properly run the tests that you paid for? Would that be acceptable? Of course not. Nevertheless, it happens more-often-than-not in the criminal cases all over the country. And it is not fair or just.

 

Often substantive motions require to court to take evidence before it can adjudicate the motion. Putting aside the possibilities of hearings, motions have a specific formality that must be met before the court will consider hearing the motion and/or taking evidence. Keep in mind, not every motion requires an evidentiary hearing and/or testimony.

 

With any substantive motion (like a motion to suppress or a motion to dismiss) there are two (2) basic criteria that must be satisfied before a motion can be adjudicated (decided) by the court. The motion must be “factually sufficient.” In other words, there must be enough facts alleged in the motion so that the reader could conclude exactly what the motion drafter has suggested. Also, the motion has to be “legally sufficient.” In other words, the facts have to be coupled with some legal authority that when the legal authority is applied to the facts that the drafter’s conclusion is supported.

 

There are some attorneys that “paper” a file to impress the unsuspecting client. The client sees the court filings and thinks “wow” the attorney is really “going to bat for me.” Nothing could be further from the truth. “Papering” a file is a gimmick. It shows a complete lack of competence, honor, and integrity. It means that the attorney thinks the client does not know any better (or worse, the attorney believes that this type of behavior is acceptable- and that is worse).

 

But to those who understand what they are looking at, this motion is complete garbage. It is a nullity and has no legal force or meaning. Unless the prosecutor was “asleep at the switch,” there is no way that any judge “worth their salt” would entertain this motion (let alone grant it) because the motion is 100 % “factually insufficient.” It isn't even worth the paper it is printed on (but how would the client know?) And that is the point. Please beware. Ask questions. Understand.

Take a look at this motion to suppress confessions and admissions. Again, I came across this motion and if I didn’t know any better, I might be inclined to believe that this motion is official. It reads official. But the motion is complete dud because the motion is again “factually insufficient.” In other words, there aren’t any facts alleged to support the motion. For starters, what confession? There isn’t even an allegation that the defendant made a statement, admission, or confession. How can there be a motion to suppress an illegally obtained confession if there isn’t any assertion that anyone made a statement? The question scarcely escapes its own statement. To anyone who knows, this motion a complete fraud.

The law provides that the attorney is entitled to make all strategic decisions regarding the representation. Nonetheless, the client should be consulted in those decisions. If your attorney is filing motions, make sure the motions have a purpose in pushing your case forward and are not simply filed to “justify” the fee. You never want to be wonder did my attorney file these motions for “strategic reasons” or “just to work the file.”

 

Motion practice can often make or break a case. Many good attorneys understand the basics, but hardly understand all the nuances to protect your interests. I am board-certified in criminal trial and have the experience to sort these issues out.

 

Anthony Candela is a Board-Certified attorney. He opened the Candela Law Firm, P.A., in 2014 and handles primarily criminal trials and appeals (both state and federal). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. He is recognized as a three-time, board-certified attorney by the Florida Bar in Criminal Trial (2008-2023). He is also admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #agoodtampadefenselawyer

 

Call Anthony Candela at (813) 417-3645 office 24/7/365 for a free consultation or visit on the web www.candelalawfirm.com for further information.

 

The purpose of this blog is purely education/information and should not viewed as creating any attorney-client privilege between the reader and author.

 

 

 

 

 

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article.

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