Having problems with motion sickness? Fight back with creative responsive motions of your own. Break the monotony, highlight absurdity, and reclaim the upper hand with levity. Always remember, Judges are human and, if you can get one to laugh, they’re less likely to rule against you.

   Motion for a Very Far Away Change of Venue

            Useful in responding to opposing counsel’s boring boilerplate discovery requests seeking useless information or when facing trial in a dead loser of a case. Trust me on this, most judges would prefer a Hawaiian vacation than your trial.

The Plaintiff, by his undersigned attorney, respectfully moves before the Presiding Judge for a very far away change of venue, preferably to the Island of Maui. This motion will be based on the grounds this case is dreadfully boring with a zero percent chance of getting any better. Since all parties are doomed to endure the inevitable trial, it would be vastly preferable to endure it someplace pleasurable. The island of Maui is renowned for its beauty, tropical fruit drinks, and relaxing atmosphere.

Motion to Substitute Client

          Useful when you discover that, despite the gripping merits of your case, your client lacks any semblance of commendable qualities. That, no matter how hard you try to dress them up, they manage to remain an insurmountable obstacle to a favorable verdict.

The Plaintiff, by his undersigned attorney, respectfully moves before the Presiding Judge to substitute pretty much anybody, preferably a celebrity, for his client to prevent inevitable injustice. Counsel promises the testimony will remain unaltered. This case involves a middle-aged male permanently injured in a motor vehicle collision making George Cloney a perfect substitution.

Motion to Exclude Prejudicial Evidence

          Limited motion useful to exclude prejudicial evidence when your case is rock solid except for a few pesky facts proving your client is a lying dirtbag. Rather than wasting time figuring out how to explain away the obvious during trial, move to exclude the offending evidence outright.

The Defendant, by his undersigned attorney, respectfully moves before the Presiding Judge to exclude the smoking gun covered with the Defendant’s fingerprints. The Defendant does not dispute that the smoking gun may have limited relevance to the issue whether the Defendant shot the alleged victim but would show such relevance is far outweighed by the devastating prejudicial effect the admission of the smoking gun would have on the Defendant’s otherwise brilliantly constructed defense.

Motion to Change the Facts

            More drastic motion useful when nothing short of a wholesale change of the facts will save your client’s ass. Such drastic relief requires support by the most fundamental  sounding principles of constitutional law, hornbook law, and Gilbert’s treatises.

The Petitioner, by his undersigned attorney, respectfully moves before the Presiding Judge for an Order permitting the Petitioner to change the facts in the interest of fundamental due process. Historical traditions traced back to ancient legal societies and Roman law have bestowed upon us the revered adversarial system of justice based upon the belief that two equally skilled advocates battling it out in a courtroom is the surest way to reveal the truth. Putting aside the questionable underpinnings of the adversarial system, it remains bedrock jurisprudence. Unfortunately, the facts in the present case are so one-sided as to be destructive to the balance claimed to be fostered by the system requires drastic judicial action to remedy the fundamental unfairness of forcing counsel to trial on the facts. Attached is an addendum of preferred facts proposed by the Petitioner to rebalance the scales of justice.

            Now, let’s be serious, you’re unlikely to prevail on any of these motions but they can easily be saved on your computer and spit out when needed at little to no cost or effort, so what do you have you to lose aside from a possible Rule 11 sanction if the judge or opposing counsel lack a sense of humor.

  Judge Judy Cone Bridges

Our Judge Judy was famous long before television’s Judge Judy was. She was famous for treating everyone with respect and dignity while performing her difficult but crucial job as a Family Court judge. Adoptions brought her the most joy as a judge and I brought her one that showed how she always found time to do the right thing.

We must have graduated law school about the same time as she was always a part of my career. I remember her being the first of our age group to bring her baby to a beach party my partner threw. She was first of our age group to be elected to be a judge, a Family Court judge. Some judges don the black robe and think its their job to play the grumpy law professor proving they’re smarter than everybody else, but not our Judge Judy. She believed it was her job to serve everyone who appeared before her; lawyers, clients, caseworkers, and witnesses alike.

I developed a relationship with a Petty Officer on a nuclear submarine stationed in Charleston who referred cases to me. Usually he referred seaman who needed representation but, this time, he referred me the wife of his submarine’s Captain. She had volunteered to be a foster parent for a deaf and blind female infant she never thought she would fall in love with her, but fall in love she did. And now she was terrified when her husband received orders to report to Naval Base Kitsap on the west coast in forty-five days,  ten of which had already expired by the time she was referred to me. My legal secretary would often joke when people called asking if I was free by saying, “no but he’s reasonable.”  Molly was wrong, for this deserving and desparate mother, I was free and I knew right where to turn to help her. I walked straight over to the Family Court and asked if I could see Judge Bridges in chambers.

If everything goes smoothly it normally takes a minimum of nine months for an adoption to work its way through the system, but things rarely go smoothly. You have to draft a petition alleging consent or statutory grounds to terminate the rights of the natural parents, serve it on everybody, and wait thirty days to see if anybody files a return objecting to the adoption. You have to have a Guardian ad Litem appointed to protect the rights of the infant. The Department of Social Services has to do a home study and file a report finding your client are fit and proper persons to adopt the child. If anyone does object, the adoption goes on the contested docket and it can take a year or more get a hearing. When I told Judge Judy what about my new client terrified of losing her precious baby, she never said she’d help, she never hesitated, she just got right to work making a miracle happen.

She picked up the phone and got the DSS Supervisor on the phone. The supervisor was familiar with the case and eager to help. The supervisor explained the parental rights of the infant’s mother and father had already been terminated and DSS had sole custody of the baby which would certainly help speed things up. She would accept service of an adoption petition and have the DSS attorney file a return to the Petition within twenty-four hours. Judge Bridges asked how long it would take to do a home study, but the supervisor said she wasn’t sure. When the supervisor offered to find out, Judge Bridges asked for the name of the caseworker who did home studies and said she’d call herself. She buzzed for her secretary to bring her calendar into her office and to get the home study caseworker on the phone.

I spent the few minutes we had waiting to describe the indescribable bond I observed between my client and the child. Indescribable in words because they had what appeared to be a unique tactile way of communicating. You could almost see them talking to each other by the way the mother cradled the baby and the way the baby squirmed in her arms. Judge Bridges’s face lit up with a great big smile as I described what I’d seen.

About that time, her phone rang, and it was the home study caseworker. She said she was backlogged more than four months, but, when, Judge Bridges explained the situation, the caseworker readily agreed to do the study on her own time. By that time, the secretary came into chambers with the judge’s calendar and was saying she was booked up through the end of the next month. She also reminded Judge Bridges everybody was waiting in the courtroom for her ten o’clock hearing, fifteen minutes ago. Tell them I’ll be right there she said to her secretary and turned to me saying, don’t worry, I’ll have a cancelation, I just know it, if not, I’ll schedule your adoption for eight o’clock one morning if that’s what it takes. I’d taken up too much of her time before she said she had to run, I had to get to work drafting and filing the adoption petition to get the ball rolling, and she’d take care of the rest.

I had the petition filed and hand delivered that afternoon. True to her word the supervisor accepted service and her lawyer filed an answer consenting to the adoption the very next day. I called my client to tell her about the home study and she said she’d already spoken with the case worker who was coming over that weekend. The following Monday a report was recieved finding the mother and her Naval captain husband were fit and proper parents and it would be in the infant’s best interest for the adoption to be granted.

As a lawyer I often felt there was a Higher Hand guiding things and this was one of those times. As fate would have it, Judge Bridges called saying one of her contested cases had settled opening a time slot on her calendar. She asked if I could I have my clients in her courtroom ten o’clock Thursday. I told her, since she’d done the impossible, the least I could do is have my clients there. Word spread what we were doing, and Judge Bridges’ courtroom was packed when the time of the hearing came around. In addition to myself, there was the mother clutching her baby seated next to her husband in his dress whites, the DSS supervisor, foster care caseworker, and home study caseworker, the Guardian ad Litem, the court reporter, sheriff’s security officer, court clerk, and even the judge’s secretary all crammed into her small courtroom.

Judge Bridges called the case and, not waiting on me, began calling witnesses herself, one by one putting their glowing testimony and consent to the adoption on the record. She entered the home study and Guardian ad Litem’s written reports into the record without objection. Her smile grew as she got closer and closer to calling the mother to the witness stand. When the time came, she invited her to bring her peacefully sleeping infant with her. There was no legalese in her questions to the mother, just one mother speaking to another in the universal language of mothers . The mother’s description of falling in love with her little girl brought actual tears to people’s eyes, even the hardened Sheriff’s deputy. Judge Bridges asked how she’d manage the infant with her husband’ away on deployments and the mother said the same way she already had with the support of her husband, her Navy family, and the amazing benefits his being an officer in the U.S. Navy provided. Then it came time for the husband. He testified how distraught his wife had been thinking she could lose their precious baby girl and how grateful his wife and he were for everything everyone had done to make this adoption possible.

In accordance with the time-honored maxim of trial advocacy, si fractum non est, non figere, if it ain’t broke, don’t fix it, I had nothing to add when asked and finally it was Judge Bridges turn to talk. She found the adoption was in the child’s best interest and thanked us, with heart felt sincerity, for making it possible for her to approve the adoption in world record time. She acknowledged it took all of us, working together, to pull off a miracle finding a permanent home for a very special child. Everybody in the courtroom that day felt God’s hand at work and felt pround of their part in it. There’s an old Jewish saying, God made mothers so he wouldn’t have to be everywhere all the time. He, we, all of us together made this remarkable, giving, and loving mother the happiest mother ever to walk out of a Family Court courtroom.

I freely admit my trial skills had very little to do with the outcome of this case. It certainly wasn’t my legal research skills, nor my elequence, that won the case. It was my knowing who and where to turn for help. I turned to Judge Bridges who made the impossible possible for a very deserving client by completing an adoption in less than 30 days before her husband shipped out of Charleston. I’ll take credit, even if just for being smart enough to know who to turn to for help.

I studied business as an undergraduate and went to law school thinking I would become the lawyer for my father’s corporation but then married a girl from Charleston and found myself living in Columbia while she attended law school. Practicing criminal law was the farthest thing from my mind when my father-in-law helped me land a job as an associate with Senator Isadore E. Lourie’s law firm in Columbia.

I don’t think the ink was dry on my first paycheck when Jack B. Swerling, a partner in the firm, was appointed to represent Wendell Moye in a death penalty murder case. Moye and a co-defendant shot and killed an employee during the robbery of a TransSouth Finance office in downtown Columbia. South Carolina had reinstated the death penalty in 1974 and the new statute allowed for vior dire or the questioning of prospective jurors. Problem was no South Carolina lawyers had any experience with vior dire as the practice wasn’t allowed in other criminal cases. The practice is so fraught with risk, the lawyers appointed to the previous death penalty case, a case involving a minor accused of capital murder, decided to try their death penalty case non-jury hoping the judge would impose a life sentence. They were wrong and the judge sentenced the minor defendant to death.   

I certainly never expected to be involved in a death penalty murder case right out the blocks. I didn’t know anything about the real practice of criminal law but was immediately impressed by the response of the criminal defense bar to Jack’s appointment. They freely offered their time and advice. It was based on the advice of Kermit King and Walter Brooks, both excellent criminal defense lawyers, who tired the minor’s death penalty case non-jury, Jack and his co-counsel, Gaston Fairey, decided they had to request a jury trial in their case. Never having done vior dire before,they asked legendary criminal defense lawyer, Millard Farmer, from the Southern Poverty Law Center,  to help teach them how to conduct voir dire in a death penalty case. Like the local criminal defense bar, Millard Farmer and other lawyers with the Southern Poverty Law Center volunteered to come to Columbia at their own expense to offer help and advice.

I sat in on the meeting wide-eyed as they taught that qualifying jurors during the vior dire process predisposes the jury to impose the death penalty right from the start. Any juror who says they can’t impose the death penalty on religious or moral grounds is stricken from the jury for cause. The rest, more often than not, are gung ho to execute the defendant. During the meeting they handed over two large notebooks on jury selection in death penalty cases and I was assigned to review and digest the cases to help prepare for vior dire and jury selection.

When jury selection began I was surprised how easy it was for Solicitor Jim Anders to get prospective jurors he didn’t like to testify they were opposed to the death penalty. He’d start by asking whether the prospective juror attended church. From there whether they believed in the supremacy of God’s law including the commandment “thou shalt not kill.” And finally, to get them to admit they couldn’t impose the death penalty based on their religious beliefs. Not surprisingly a good number of the jurors who fell into this category were of African decent. Jack Swerling had the task of rehabilitating those jurors to keep them from being stricken from the jury for cause.

Jack was a big man who had a commanding presence in the courtroom, but he also  had a surprisingly light touch. He rehabilitated jurors by walking them through the multiple steps required under the death penalty statute before the death penalty could be imposed. First, a defendant would have to be unanimously found guilty beyond a reasonable doubt of the unlawful killing of another being with malice aforethought. But Jack explained the intentional killing with malice aforethought wasn’t enough and, before the death penalty could be imposed, those same jurors would have to unanimously find beyond a reasonable doubt the murder was aggravated. The State would have to prove again beyond a reasonable doubt the murder was aggravated such as it occurred during the commission of a felony, the defendant had previously been convicted of murder, the murder involved torture, multiple people were murdered, or it was the murder of a police officer or a child. By precisely defining the kinds of murder required in order to impose the death penalty, Jack put the minds of many prospective jurors at ease. Then Jack explained that even if the jury unanimously found the defendant committed a premeditated, aggravated murder, they would also hear mitigating evidence and would not have to impose the death penalty. By explaining the process in greater detail, Jack gave the jurors the courage to say they could do their duty and follow the law despite their personal moral nor religious beliefs. Jack Swerling’s vior dire was so masterful, after exhausting all his preemptory challenges striking Jack’s rehabilitated jurors, Solicitor Anders was stuck with a jury morally opposed to the death penalty. He gave up and accepted a plea for life in prison.

The plea for a life sentence in the Moye case was a victory and a good story in its own right but that’s not the end of the story. The law-and-order mayor of Columbia , Kirkland Finlay, himself a lawyer, decided to make political hay out of tax dollars having been spent on the lawyers who kept Moye out of the electric chair. Much to his chagrin his political grandstanding got him appointed to the very next death penalty case. Findlay bitterly complained he weas a real estate lawyer and unqualified to serve. The Columbia criminal defense bar agreed, so they got together and requested he be removed from the case to prevent an obvious miscarriage of justice. Jack Swerling, who knew full well the sacrifice required, volunteered to represent the defendant in his place. When the Court agreed and appointed Jack, Solicitor Anders was forced to accept another guilty plea for life to avoid being embarrassed again.

I don’t think I’d finished my first year as a lawyer and the lawyer I was working for had won two death penalty cases back-to-back. I don’t think even Clarence Darrow could claim such a record. Impressive, but what impressed me most, and what I most admired was the willingness of criminal defense lawyers like Jack Swerling, Gaston Fairey, Kermit King, Walter Brooks, Millard Farmer, the lawyers from the Southern Poverty Law Center to stand up for justice at great personal sacrifice.

I spent the next five years traveling around the State of South Carolina trying criminal cases with Jack Swerling. During this time I served my first term on the Board of the South Carolina Trial Lawyers Association and was priviledged to hear, Gerry Spence, from Wyoming talk about his volunteering to represent the minor defendant in Kermit King’s and Walter Brooks’ death penalty case being argued on appeal. My admiration of such lawyers caused me to take a career path I never could have imagined. A career that included criminal defense spanning fifty years over which that same generosity was extended to me by members of the criminal defense bar and the South Carolina Death Penalty Resource Center when I was twice appointed to death penalty cases of my own. I am proud to have known so many great crimninal defnse lawyers in my practice and grateful they pointed me in a new direction on an unexpected career path.