When I read Mark Bennett’s, the Texas Tornado, post uploading a motion onto JD Supra, it reminded me of the Whole Motion Catalogue, an initiative by Mark Mahoney of the New York State Association of Criminal Defense Lawyers way back when.  One of the common requests on the Association listserv was, “does anybody have a motion?” 

These requests always troubled me.  While it can very helpful to read someone else’s motion to avoid having to reinvent the wheel and to help develop a line of argument, most lawyers took the motions and did nothing more than changed the names.  Often, they would miss one or two, and the name of the original defendant would remain hidden somewhere in the body of the motion, raising an eyebrow if the judge happened to read the motion.  The problem is that once a motion is put out into the world, there’s no control over whether it serves as a model and inspiration, or a template for changing the names and neglecting to do the job.

The original Whole Motion Catalogue eventually became dated, as the law changed and caselaw developed.  One day, the Board decided to create a new one, over my objection.  Despite my misgivings about the concept, I contributed a number of motions.  Ironically, as it turned out, the other board members, the ones who were in favor of the project, contributed zip.  And so the idea died and has never been heard from again.  May it rest in peace.

I am a strong advocate of serious motion practice.  There should be no such thing as a generic motion, and every paper submitted to a court, no matter what the case, should be directed to the specific facts and circumstances of the case.  While the law doesn’t necessarily change, its application to the facts does and neglect of that is inexcusable.  The fact that so many lawyers treat motions like a joke fosters the very common judicial reaction of treating motions like toilet paper.  It makes me nuts when a judge can’t be bothered to read my motions.  I take the time to write each one, and the judge should take the time to read each one.  I point this out to judges when needed.

While helping others to be better lawyers is part of our obligation to the profession, helping them to be lazy lawyers, to skate by off the work of others, is not.  My motions represent my efforts, on behalf of and paid for by a client.  They are not created to let other lawyers claim ownership to their clients and charge them extra for work they took from me. 

Certain of my motions have gained surprising popularity, where I receive calls from lawyers I’ve never heard of asking for a copy.  They have got to be kidding.   I’m not here to do their work, or give mine away so they won’t have to do their work.  I could be flattered by these requests.  I’m not.  Do your job, man.

So I won’t be contributing to JDSupra.  I won’t be judgmental about anyone who does, but if you’re the type of lawyer who wants to glom someone else’s papers to avoid doing your job as a criminal defense lawyer, then I’ve got a real problem with what you’re doing.