Legal Writing has Specific Structuring
It is not on accident that all legal briefs have a similar look. I say similar because many attorneys are not good at writing and formatting, but because it says attorney under their name, they can get away with it. You do not have that luxury, so your luxury will be presenting it perfectly.
The good news is that it is easily repeatable once you know the structure and what changes in your structure.
IN THE SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
Case No. 00-23546
NOTICE OF MOTION TO [THE TOPIC OF THE MOTION], PER PENAL CODE SECTION [123]; MOTION AND MEMORANDUM
DATE: [1/1/2024]
TIME: 8:30AM
DEPT.: 99
The Honorable John Johnson, Judge of the Superior Court
Most States Have Rules of Court
The Rules of Court are a very weird thing. They give both procedural and substantive rules.
A procedural rule is how to go about something.
A structural rule is what you must do.
Most states have rules of court, and then most counties have local rules of court. You have to constantly check both to make sure you are doing it exactly as this court wants. Because they want consistency.
NOTICE OF MOTION
A notice of motion is a rather stupid formality. But it is a tradition that still exists so it must be done.
The very first page is called your notice of motion (or whatever you are doing). Aside from the format it has specific content requirements.
You must identify: the time and location; who is bringing the motion; who the motion is brought against; and what you want to get from the motion.
MOTION
The motion will basically restate what you just said in the notice of motion. It must state where and when; who is making it; who it is against; what you want to accomplish with it; and that it is based on e.g., the memorandum; exhibits; declarations; argument or evidence to be presented at the hearing; the papers on file, etc.
MEMORANDUM OF POINTS AND AUTHORITIES or
MEMORANDUM OF LAW or
MEMORANDUM
Any of the above titles work, but the memorandum is where the magic happens. This is where you make you case.
This is also where consulting your rules of court becomes critical. You need to learn of page limitations, required contents, if you need a table of contents, if you can attach the notice and motion or file separately, etc.
Generally speaking, all memorandums have the same format. Which is what we will go over below. And each heading will act like a heading in the memorandum.
MEMORANDUM OF POINTS AND AUTHORITIES
Factual Basis in Support
You can just say facts, or be fancy and say factual basis in support or whatever communicates that this is the facts that matter for the court to consider.
This is also where great restraint must be exercised. You need to be objective (focusing on the big picture); you should be very simple; try to not be argumentative (expressing an opinion); and be able to support it with proof.
Proof comes in the form of evidence. Evidence comes in many forms, e.g., audio recordings, video recordings, reports, written documents, photographs, charts, articles, and declarations.
You can be a source of information too. But you must prepare a declaration to support the introduction of those facts.
Here is a super short example of the kind of facts to present.
On March 3, 2017, at approximately 3:23PM in the County of Los Angeles, City of Redondo Beach, movant (fancy word meaning the person making the motion, you) was sitting in a legally parked vehicle. The car was in a parking lot, properly situated in between the white lines in said lot. The engine was turned off, but the key was engaged so that the radio was playing. There were a few other persons walking around, and two other cars in the parking lot. The parking lot was situated in front of a 7-11 convenience store.
You should have a mental image of what that looks like. That same image is now in the court’s mind.
At approximately 3:30PM, a male came running out of the 7-11 store and ran directly towards the above car that movant was sitting in. The male was wearing a long sleeve shirt and had his face covered. He ran past the car and around the corner. Moments later, an employee came out of the store and ran after the male. But then stopped right in front of movant’s vehicle and said something to the effect of, I got you now. “Don’t move.”
Movant was shocked by the whole event and before any thing could be said, movant was being pulled out of the car by the employee and was thrown to the ground. A few minutes later the police arrived and placed handcuffs on movant. See attached declaration, incorporated by reference as if fully set forth herein.
DISCUSSION
I. The Eyewitness Identification was Readily Impeachable by the Store Surveillance Footage, the Arresting Officer Failed to Secure Exculpatory Evidence that was Since Lost, Prejudicing the Defense
Headings are super important. Admittedly, this was always an area your author struggled with until a tip was read by an appellate attorney. She said, a heading should be a summary of your argument for that section and should make the court think, “Hmmm, I wonder how the other side is going to be able to beat that.”
That was a description I could work. Summarize and zap.
When you switch to a new main topic to argue, you need a new heading. Sometimes you can have a master heading with subheadings, and those can even have sub-subheadings.
I. Master heading topic.
A. Subheading to go with main.
- Sub-subheading to break up the points made.
- Building different aspects.
B. Now Back to Main theme, but different aspect.
II. Switching Topics Completely gets a new master heading.
A. Going with the above master heading an argument should look something like this.
The United States Supreme Court held in California v. Trombetta, (1984) 467 U.S. 479, 485 that a defendant has a constitutional right to access evidence favorable to his case and that the government was under an obligation to preserve it. This standard was then changed by Arizona v. Youngblood, (1988) 488 U.S. 51, 58 (“We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”)
The video footage from the store would have shown the dress and appearance of the man in 7-11. It is unknown if that footage would have shown the man running past movant’s car. If the latter aspect was shown, then it would have clearly proven innocence, we cannot know this because the officer failed to secure evidence when presented with protests that they had the wrong guy. See attached declaration of movant. But as to the former, the employee admitted that movant was not wearing the same shirt and that a search of the car showed no like shirt was present. The employee then claimed he may have been mistaken about the shirt the man was wearing. And that is what makes the evidence lost from the footage critical. Once the employee became unsure, the video footage now was the main proof to show innocence. That is the prejudice that Trombetta spoke of.
The distinction that makes Trombetta applicable over Youngblood is that the Youngblood Court said, “potentially useful evidence”. Once the employee became unsure, it no longer was potentially useful, but became vital for the defense and for the prosecution.
Yet as to Youngblood, movant repeatedly exclaimed that the video would prove innocence. Admittedly, the less it appeared the officer was listening, the more excited the tone of voice became. Finally the officer said, “You know what? I have heard enough out of you. You get to go downtown and your little attorney can go get the evidence if you want it that bad.” See attached declaration. The failure of the officer to engage in his lawful duty to collect evidence, in favor of punishing the accused for simply being excited when evidence of innocence was mere feet away, is bad faith.
II. THE KEY TO A GOOD ARGUMENT IS TO ADDRESS WHAT HURTS YOU
The above had a pattern. You first need to announce the rule that applies to the argument you want to make. Then you tie the facts to the law. The formula is simple:
Law because facts.
A battery occurred because the man punched the other in the face with a closed fist.
The most important thing to include in your argument after why the law supports you, is why the law hurts you. By doing this you get to frame the situation first. The above set it up as the harm was occurring, then made worse by the arrogance of the officer. The officer looks less saintly as the first impression in the judge’s mind. You can guarantee that the prosecutor will raise that issue, so there is no reason to not be the first one to do so. Then you look for the reasons why the bad law does not apply. Like the Supreme Court’s use of the modifier “potentially”. Modifiers are very important to look out for, they can help you work around a bad law, and are almost always present.
I just used a modifier by staying almost always. Courts often throw them in and we do not even see them.
“We reverse that judgment. When police or prosecutors conceal significant exculpatory or impeaching material in the State’s possession, it is ordinarily incumbent on the State to set the record straight.” (Banks v. Dretke (2004) 540 U.S. 668, 675-76)
The high court said ordinarily, not always. And on that point, it is about as close to an always as one can get in the law. Yet they still modified it with ordinarily.
CONCLUSION
This does not have to be too long. But just a recap of the points made.
We must present the papers properly and in the format expected. Your memorandum is the key part of the claim to be made. Your headings should summarize the argument to be made and make your reader think wow, wonder how they can beat that one. Your facts should be clear and to the point and then link the law to the facts. Show how each fact connects to a legal requirement. Then summarize again at the conclusion.
The Court should grant the motion for sanctions due to police bad faith in failing to secure beneficial defense evidence.
PRAYER
Your prayer is where you ask the court to do something. It’s kind of like your conclusion but more direct in what you want.
Wherefore, based on the showing of good cause in the memorandum and evidence in support, movant prays for the Court to:
- Make all appropriate findings and;
- Grant this motion;
- Afford relief by sanctioning the government’s bad faith by precluding their use of the employee’s statement regarding identify;
- Absent the government being able to prove identity through untainted means, the Court should dismiss the charges.
- Any other relief the court deems just and proper.
It is so prayed.
Respectfully submitted,
your signature
Your typed name,
Defendant in propria persona
TEMPLATES TO HELP YOU FORMAT CORRECTLY
Because it is so important to have the correct structure, you can download these templates for motions and notices of motion and memorandums. Make sure that they comply with the requirements for your local court’s rules and state rules of court.
I also recommend that once you open the template in Word, that you create a master template for your case. To do this, you will put in the info that will always be present, your name, the court, case number, parties, then go to File, Save as Template. Be sure to save it in a location on your computer you can get to easily. Sometimes the templates save by default to some random folder. And once you do that, then close it out. That is super important. If you just save it then start writing it assumes you want the new writing to be part of the template. But if you close it out, then it knows this is new writing for a specific project.
This is pleading paper you can use generally, and this is a template for Motions and for declarations in support.
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