Jocelyn Stewart - Shaping The Battlefield: How To Draft Motions in Military Practice

~LtCol (Retired) Brendon Tukey~

Next is the terrain. It can be distant or near. It can be difficult or easy. It can be open or narrow. It also determines your life or death . - Sun Tzu

Never let the enemy pick the battle site. - George S. Patton

For as long as wars have been fought, strategists and military theorists have noted the importance of understanding terrain and, whenever possible, being the one who picks the field of battle. After all, if you know the terrain and you pick the place of battle, you can enhance your mobility while restricting the enemys. You can employ your weapon systems to best effect while degrading the enemys. You can shelter and protect your troops, while forcing the enemys into hazard.

Unfortunately for defense counsel, when it comes to courts-martial, they rarely, if ever, will have the opportunity to pick their battlefields. After all, it is the Congress and the President that authors the statutes and rules governing the fight. It is the prosecutor who picks the charges and crafts the specifications. It is the convening authority that selects the forum and even the members of the jury. But if the defense counsel cant exactly pick the field of battle, she does possess the tools to, perhaps, alter it.

In combat we refer to this as shaping the battlefield, changing it in ways that favors us and it is done in a myriad of ways. Air support can be used to interdict the battlefield, isolating one echelon of the enemy from supporting formations. Indirect fires can foreclose certain avenues of advance, forcing the enemy onto less favorable ground. Obstacles can be emplaced to slow movement and fortifications built to protect friendly forces.

For the defense counsel all of this, and more, can be accomplished through motion practice. Key prosecution evidence may be suppressed, testimony excluded, otherwise inadmissible defense evidence brought before the jury, favorable instructions given, and much more. Through motion practice, the defense counsel possess the tools to foreclose options and opportunities to the government, while opening up her own freedom of movement. A well-planned motion then, is one of the defense counsels most powerful and effective weapons for shaping the battlefield and creating the conditions for victory.

Unfortunately, motion practice rarely gets the attention it deserves and is even more rarely the subject of systematic training. For young prosecutors motions are all too often seen as annoyances to be responded to, not powerful tools they might employ themselves. For young defense counsel (and all too often old ones as well), motions are simply formalities to be grabbed from the nearest handy motion bank, recycled and then filed so as to preserve the issue with little, if any, serious consideration as to the larger strategic picture. At the end of the day, the ins-and-outs of motion practice, particularly the basic mechanics of drafting and preparing a proper written motion, is left to on the job training or the occasional session at a legal conference.

Lest this strike some as hyperbole, consider this - during my first year on the bench as a Military Judge defense counsel in one trial filed a motion regarding the unreasonable multiplication of charges. As I read it over, I couldnt shake the feeling that the admittedly well-crafted and brilliantly phrased motion seemed a bit familiar. After a little checking in my own files I soon discovered why it seemed so familiar (and brilliant): I had written the motion ten years earlier during my first tour as a defense counsel This was not the only time this happened.

What follows then is Ms. Stewarts attempt to step into the breach and provide counsel of all ages with a systematic approach to crafting effective and legally sound motions. It is fitting that she should do so it was my pleasure to have Ms. Stewart practice in my court on several occasions and to witness first hand her expertise at preparing and submitting motions that were consistently on-point and written with an eye to making it as easy as possible for me to rule in her favor. And while I did not always grant her motions (and if you ever get the chance to buy her a beer Im sure shed be happy to give you chapter and verse on why I was wrong (I wasnt)), even in failure her motions consistently served to push opposing counsel back on their heels and shape the battlefield in her favor even if only in the minds of the prosecution.

Reading this book and mastering its approach isnt going to make you an expert in motion practice, nor will it guarantee success on the field of battle. What it will do is provide you with a sound foundation and method for systematically drafting motions in a manner that enhances your effectiveness as an advocate and provides you a powerful tool for shaping the battlefield. The government may get to pick the battle site, but that doesnt mean you cant alter it in your clients favor .

~ LtCol (Retired) Brendon Tukey

* Lt Col (ret) Brendon K. Tukey enlisted in the Army in 1993 after a post-college year spent teaching high school convinced him that the Airborne was likely a safer and saner career option. He graduated from Wake Forest University School of Law in 2000 and received a direct commission into the United States Air Force that same year. Over the next nineteen years his career was largely focused on military justice, including two tours as a Trial Counsel, three tours as a Military Defense Counsel, a tour as Appellate Government Counsel, and a tour as a Military Judge. After retiring in 2019 he settled in Eastern Washington, where he serves as the Division Chief Administrative Law Judge for the Spokane Valley location of Washingtons Office of Administrative Hearings. Mostly though, his focus is on raising chickens and bees, amateur (in the extreme) gardening, and building semi-passible pieces of furniture at the direction of his much better half.