The Introduction 

Motions, too frequently, are treated as a mere procedural routine. For a skilled advocate, motions represent an invaluable opportunity to expose and challenge many factors, both legal and extralegal, while pursuing the goals of the chosen model of representation.

Action Motions 2K10 are intertwined with an underlying strategy of representation, a strategy constructed by combining, in various degrees, persuasion, legalistic reasoning, influence and conflictineering. We identified four basic skills of advocates with descriptions of these skills in the Models of Representation section. 

We summarize these skills here with the icons we associated with each of these skills.

Persuasion --  the power of a person's personality, expressions and presence to win over and advance his or her position.


Influence --  the capacity or power of a person to produce effects on others by intangible or indirect means, best illustrated by example with the term "political influence."  




Legalistic Reasoning -- reliance on law.


In practice, each of these three systems is most frequently combined with another of the systems. Once the representation ends, it is difficult to determine, which of the system was most responsible for results. 

                                   Advocates who are super-achievers use the fourth basic system with combinations of these first three identified systems when representing individuals who are normally foreclosed from effective use of the other three systems. This system is Conflictineering.




Using Motions to Pursue Goals of Representation Model 

 "What Motions Do I file?"  or a better question, “What goals of my representation model can be pursued with a motion?”

If this first question has been asked once, it's been asked a million times. To answer succinctly, the number and type of motions should be tailored to the goals of the representation model used. There are many motion books and even more motions that can be obtained from electronic sources.

At best, these sources contain only useful skeletal portions of motions. These sources should not be used to develop a motion strategy. To simply reproduce a motion is a sure way to forego the many opportunities that motions offer. Simply copying and filing a motion often disrupts the goal of your representation model.

The better question that deserves consideration is, “What goals of the representation model can be pursued with a motion?”  Before you prepare a motion, it is necessary to determine the underlying goals of the motion -- both immediate and long range. Of equal importance is how the motion will fit into the model of representation. 

The Underlying Goals 

The underlying goals of the representation model should be the primary consideration in making decisions about the subjects and contents of the motions to be litigated. Before you rush to prepare motions, you must understand your client, problems in the case, your resources and the representation model you are using.

It is important to decide not only the focus of the motions you file, but also which motions not to file and what subjects you choose to avoid. For an example, in serious homicide cases, a motion for a psychiatric evaluation is often filed in a routine, "knee-jerk" fashion for legal reasons. Typically, this motion gets the accused a trip to the state mental health facility and, in most states, a routine psychiatric report indistinguishable from the reports evaluating almost every person examined by the institution. Instead, you may choose to file an Ake type of motion or use other funds or resources for a private evaluation. You may choose to forego all psychiatric evaluations if these evaluations drive a wedge between you and a good relationship with your client.

Another reason not to immediately file motions is that this rush usually results in a number of form motions being filed. Form motions tend to exhaust the subject matter of issues which a court must hear, all while failing to capture the desired focus necessary in the representation model.

This Actions Motions 2K10 paper is divided into four parts. First, there are some definitions of terms and concepts that are universal to all aspects of Actions Motions 2K10. Next, a section about the purposes of motions; followed by the third section about the process of drafting motions; then, the last section analyzes effective use of motions. 

A. Definition of Terms and Concepts 

The following concepts and definitions provide guidance to maximize effective communications using Actions Motions Plus 2K10. These concepts and terms relate both to the subject and substance of the communication. The concepts identified here work well in both oral and written communications.         

Concentric Statements

The concentric statements concept is helpful both in writing the motion and in the strategic subpoena aspects of Actions Motions Plus 2K10. It is easy to visualize this concentric statements concept by associating it with concentric circles. This concentric statements concept involves compartments of information, with the most specific part of the information being included in each successively larger description of the information.

As the name “concentric” implies, each compartment of information encompasses the information included in the smaller compartment or compartments it includes. It is not required that the beginning description start at the most particularized portion of the information. The initial description or boundary could be the broadest description of the information and the last description be the most particular.

It is only important that the end product have an identifiable center or core of the information which is the most specific description of the information and each of the other descriptions of the information in a progression encompass the other descriptions of the information.

Each progressively larger description of the information will include a description that includes the information or item included in the smaller boundary of information.

To more specifically state how this concept works, lets use a very simple request for information in a Brady type of motion. The boundaries of the most particular description of information requested would be a very specific item, the boundary of the next information would encompass the specific item within the first described boundary but would include additional very similar items. The next boundary would include a larger range of information. However, the description of the information would be broad enough to include everything in the two previous more particular requests. So go the bounds of the request until they reach the outer limits of reasonableness. Obviously we could start the request in inverse order and the principles of the concept are still operative.

For example, Joe Jones seeks the picture of a gun taken from the wallet of the victim. Joe Jones seeks all pictures taken from the wallet of the victim. Joe Jones seeks all pictures taken from the scene of the crime. Joe Jones seeks all pictures relating to this case. And so widens the concentric descriptions of the information.

This concept is not limited to a request for information or an item but can also include the manner in which you describe or disseminate information. A simplistic example of this use of the same concentric concept follows. Joe Jones was shot in the hand. The gunshot wound to Joe Jones's hand created a series of problems. First he lost use of his arm because of the wound to his hand. After Joe Jones lost the use of his arm because of the gunshot wound to his hand he was unable to work. The concept goes much as the nursery rhyme about the trip to St. Ives. As you remember, it was on the trip to St. Ives, where first there was a meeting of a man with seven wives, each with seven cats, each with seven lives, etc.

The benefits of the concentric statement concept in the legalistic reasoning basic system of advocacy is that you meet the ever increasing demands of particularity with our encompassing surrounding descriptions to cover the overlooked or unexpected possibilities. The benefit to the persuasion basic system of advocacy is the repeated inclusions of the core description.

This concept of concentric statements can apply to an entire document or entire oral presentation as well as just part of the document or presentation. The concept is that the document or oral presentment will be so multipurpose that it is an ocean with an area of specificity where a gnat may drink, while at the same time serving the purpose of providing a bathing place for an elephant. 


A closely related concept is identified as looping. This simply means taking a part of a previous statement and including it as part of the current statement. Sometimes this can be done to move from one concentric description to the other.

Looping is most frequently used in the direct examination of a witness. The written use of looping can be much the same as the following example of looping in an oral examination.

Q: Mr. Jones, did you get in your car?

A: Yes.

Q: After getting in your car, what did you do?

A: I started the car.

Q: Now after getting in your car and starting it, what did you do next?

A: I backed out of the driveway.

Q: Now after you started the car and backed out of the driveway,

     what did you do?

Looping for written documents can be as simplistic as the example or, more realistically, it can become very sophisticated using the related concept of cut, paste, accumulate and incorporate. As you imagine this means taking a previously used document and importing parts of it or the entire document into the new document. This can be done by identifying the previously used material or by simply reusing the material without identifying its previous use. News articles are good material to be incorporated. Often law enforcement officials made statements to the media about the case that can be used.

The benefits of this looping and cutting, pasting and incorporating in communicating both orally and in writing in the persuasion basic system of advocacy are that the essential descriptions of the information to be conveyed is repeated. 


Using repeaters can derive benefits similar to looping. This term, repeaters, is used to describe the multiple use of a word, sentence or phrase to start a new paragraph or expression. Needless to say, the repeaters should be buzzwords. 


Percolate the information that needs to be communicated. Drip, by drip, by drip, continue to percolate the information or request until your communication has saturated both your opposition and the other triers of fact. To percolate the information means simply to create a vehicle whereby you can continuously pound your point across. This concept has an application within a single document as well as throughout the litigation. 


On the apparently opposite end of the spectrum from the percolate concept is the bomb concept. This is when you deliver the big surprise for dramatic effect. Just as important as the effect of the drip by drip continuous delivery of information is the Big Bomb impact of devastating information. After using the information for the bomb, the same information can become even more beneficial when used as subject for the percolate concept.  


Tantalizers or “teasers,” as the television and radio industry call this concept, heighten the anticipation of the next motion.           


Notice to the opposing party that you plan to act in a particular case can demonstrate fairness to the trier of fact. This warning is most often effective in the form of a letter. 


The wording contained in the dragnet clause of financial documents is considered to be the outer limits of all-encompassing descriptions of information. These dragnet clauses are in most of your client's loan documents that pledge security as collateral.  This dragnet clause in security agreements often reads as follows. 

Or any renewal of the whole or any part thereof and any and all other indebtedness now due by grantor to grantee or hereafter incurred by grantor, whether directly or indirectly, as principal, endorser, guarantor, or otherwise. 

This security agreement dragnet clause includes all future financial obligations incurred by the borrower to the lender. The clause is used by lenders to obtain as much protection as possible.

In the legalistic reasoning basic system of advocacy there is substantial case law in most every jurisdiction that supports various forms of dragnet clauses and description. The use of this case law to meet the criminal proceedings requirements of particularity is valid.         

“May I be heard?”      

One additional concept before we venture into heart of Actions Motions 2K10. This is the “May I be heard?” concept.

There are times during proceedings when rulings or statements by the Court seem so outrageously unfair that our frustration causes us to react with a “B-B-But Judge!” or a, “You can't do that!”, statement as a preface to a oral motion. Reactions like these do not satisfy the dignity of the courtroom, and often so anger the judge that there is little or no opportunity to obtain a fair reconsideration of the court's ruling. The frustrations that accompany an unjust ruling can be relieved just as effectively and with a better chance of both prevailing and creating an adequate record if we habitually respond with the phrase, “May I be heard?” There are probably no words that better preface efforts to protect due process any more directly as any problem arises than, “Your honor, may I be heard?” If you are denied your request to be heard, the next response should be a request to make an offer of proof. The injustice in being denied these basic rights solidifies the showing of a violation of rights for post-conviction review, and measures the true unfairness of the proceeding.

Tell a Story         

Other very basic communication skills dictate that any lengthy communication have the components of an introduction, body or detailed statement and a summary. Tell `em you're coming, arrive, and then tell 'em you have been there.  Then remember, return again, again and again. When the people in the courthouse call you “Duracell” you are getting the job done.

All of the terms described in this section are buzzwords that identify the style of communicating best suited to accomplish the goals necessary for the representation model you use.  

B. The Purposes of Action Motions 2K10 

Action Motions 2K10 can serve many purposes; the following list is not exhaustive, but is intended to suggest a number of essential considerations. Fundamentally, Action Motions 2K10 allow the accused to assume a proactive role, rather than the less powerful reactive role, to which the criminal process generally relegates the accused.

The following purposes can be used to enhance the model of representation you use. Each of these suggested purposes deserves consideration with any combinations of the four systems of advocacy you choose to use.  

1.  Correction

     The correction purpose of Action Motions 2K10 can be:

          to address deficiencies in the process; or

              to correct inappropriate behavior on the part of judges,

                Prosecutors, administrators, law enforcement officers, etc. 

2.  Education:

     The education purpose of Action Motions 2K10 can be to:

educate triers of fact;

advance compelling reasons to grant the accused relief

identify prejudice against the accused or the attorneys;

identify injustice in courtroom practice or procedures; or

create an identify for the accused and the attorney in the

     perspective of the triers of fact.

3.  Preservation

     The preservation purpose of Action Motions 2K10 can be to:

          preserve the record for review;

preserve and identify violations of statutory and constitutional rights;


capture and record the atmosphere of the proceeding and the community, the prosecutor, the judge and other triers of fact; or


 the community, the prosecutor, the judge and other triers of fact; or


put together a compelling picture of trial atmosphere and proceedings for the record and communication to the world outside the courtroom.


4.     Steering

The steering purpose of Action Motions 2K10 can be to:

     guide the course of the trial;

     determine and control the admissibility of evidence; or

     attack and change prejudicial practices. 

5.  Information gathering

The information gathering purpose of Action Motions Plus 2K10 is to afford counsel and client an understanding of the perceptions of judges and adversaries. 

Motions consistent with the Actions Motions 2K10 concept are designed to serve more than the purpose that can be determined from a reading of the motion. For example, a motion to suppress statements by the accused can simultaneously sell a litigation theory, portray the accused favorably, identify mitigating circumstances, preserve evidence, expose misconduct, attack prejudicial procedures, give you an opportunity to examine law enforcement witnesses, and of prime importance, allow your client to see the government's case.

C.  Drafting Action Motions Plus 2K10 

Motions may be oral or written. For obvious reasons, motions are better written unless time prohibits. Most motions are required to be in writing, some must be accompanied by an affidavit or verification. Some jurisdictions require a memorandum of law to accompany the motion. It is advisable to read the local rules before beginning; this should be done even if you have practiced in the jurisdiction for a long time. It is often surprising how the local rules differ from the usual practice.

The following structure used in drafting written motions is easily adapted to formulate emergency oral motions. To frame the issues in a motion effectively and to prepare those issues for presentation and preservation, each motion should contain ten essential elements:

(1)    headline;

(2)    can-opener;

(3)    lead;

(4)    factual basis;

(5)    about the accused

(6)    instructive element;

(7)    rule or statutory element;

(8)    state and federal constitutional basis;

(9)    the relief requested;

(10    attachments and,

(10)   appropriate use of an index. 

Actions Motions Plus 2K10 generally are most effective if written in the journalistic inverted pyramid style: they should begin with the important facts and end with the record-preserving elements, then, at the end, there should be a kicker that enforces the points of importance. Each motion should sell some aspect of the case and have a function in advancing the goals of one of the four basic systems used by advocates.

The motion should obviously portray the accused persuasively and positively; educating the triers of fact so that they are capable of ultimately rendering a favorable disposition of the charges.

In most Action Motions Plus 2K10, the triers of fact should be able to understand it as well as a person with a legal education. It is helpful if members of the media can quote the motion verbatim and relay the information to the general public.

Before we begin drafting Action Motions Plus 2K10 it is necessary to decide exactly what needs to be accomplished with the motion and which of the basic system or systems of advocacy will best accomplish these needs. 

D.  Elements and Examples of Action Motions 2K10  

1.  The Headline or Title 

The title of a Action Motions 2K10 should catch the attention of the reader and immediately begin to play a part in the basis system of advocacy being used. It should sell some aspect of the case. It is archaic to entitle every motion "Motion to . . ." . Get with it! Catch the reader’s eye; pique interest in the motion.

Primacy is important. The headline comes first. Don't waste words in the important areas, the beginning and the end. Primacy and Recency people best remember the first and last things they hear and read.

Headlines sell -- they must.

A headline is not limited to the title of the motion. It is important that each section of the motion begin with a new headline. The headlines for the beginning section of each can also be effective lead sentences.

When the motion is complete a scan reader should be able to read only the titles of each section and have a good understanding of the motion. Each section headline should invite the reader to read the motion line for line. If the people working at the filing desk do not read your motions, most likely you should employ more forceful, direct language and consider changing the content of the motions. When your Action Motions Plus 2K10 are filed, they should cause a whisper storm in the courthouse. 

Examples of the Headline or Title 








 RANDALL SHERROD - a/k/a, The lesson politicians did not learn from the Nixon-Watergate era






2.   The Can Opener 

The can opener, the opening phrase of the Action Motions 2K10, should be simple, direct and free of convoluted legalese. The opener should "zing." Sensitivity to the presumption of innocence is absolutely essential; refer to your client by name or at least as "the Accused" rather than “the Defendant". Personalize and humanize your client often by using the individual's full name at each opportunity. These sensitivities, together with concurrent sensitivity to terms used to refer to women, minority persons and poor people should be maintained, of course, throughout life -- but especially in the language of motions. 

Examples of the Can Opener 

The Accused moves this Court . . . 

Larry Ruffin moves this Court . . . 

Please, Judge, Please . . . 

No way, Ms. Prosecutor, no way! 

The Answer is NO! 

Just what is it about NO that you don’t understand! 

3.    The Lead  

The lead sentence, or more accurately, the unit of lead sentences, is another concept which is borrowed from journalistic technique. These lead sentence are sometimes little more than headlines for each section.

You should use the lead to highlight the important points you are trying to make with the motion. The inverted pyramid style conveys pertinent information in a powerful fashion to persons who may only glance at the first few paragraphs of the document, and compels the indifferent reader to continue reading. The paragraphs should be broken into small segments, with numerous mini-headlines.

Don't be afraid to use all the desktop publishing skills and resources at your command. Bullets are effective. Yes, pictures, too; and color if you can afford it! 

Examples of the Lead  

(a) Judge Patrick A. Pirtle's Choking- Justice-To-Death Gag

     Order Is Unfair.  

When counsel received the order and letter of Judge Pirtle restricting their conversation with the media about Randall Sherrod and Dr. Ralph Erdmann, counsel felt the choking-justice-to-death gag order was grossly unfair, as it silenced counsel at a critical moment when counsel was about to reveal Randall Sherrod's misconduct to the world.  

(b) The Wrongdoings of Dr. Erdmann, District Attorney

     Randall Sherrod, And the State of Texas Has Prejudiced

     The Rights Of Douglas Palmer  

There is one overriding truth in this case -- that truth is that Douglas Palmer did not intend to inflict any injury to Mr. Merriman that would have resulted in his death.

4.    The Factual Basis  

The Factual Basis is the heart of the action motion. It should state the facts in a manner that vindicates the Accused. This is an opportunity for unanswered advocacy; to take full advantage of the opportunity to present the facts as you and your client perceive them. Under all four of the basic systems of advocacy you have an opportunity in this part of the Action Motions 2K10 to clearly individualize the issues to your client.

Write these facts plainly so that any lay person can understand the injustices done to your client. Give great consideration to the effect each aspect of the motion will have on the model of representation you are using. 

Examples of Factual Basis 

Randall Sherrod Is Using The Disqualification/Recusal Motion Of Judge Pirtle As A Delaying Tactic


If one believes that by attempting to disqualify Judge Pirtle, Randall Sherrod is seeking fairness for Douglas Palmer in a judge, or fairness in any other way, that person is a prime candidate to purchase the Brooklyn Bridge. Randall Sherrod does not think Judge Pirtle is a material witness. Randall Sherrod is not seeking a fair trial for Douglas Palmer. Randall Sherrod only wishes to delay the presentation of evidence against Dr. Erdmann. Randall Sherrod wants to continue his cover-up of Dr. Erdmann's unprofessional and criminal behavior.


See No Evil, Hear No Evil, And, By All Means, Speak No Evil


     Mr. Sherrod, Mr. Hill and Mr. Ware were like the Three Monkeys who saw, heard and spoke no evil. Sherrod sees no evil in Erdmann's failure to document his findings. Hill saw the evil in Erdmann's biased opinions and put a stop to it in his jurisdiction, but failed to warn County Commissioners throughout the state who were still using Erdmann to perform hundreds of autopsies each year. Ware also saw the evil flourishing in his jurisdiction, but he put his fingers in his ears when law enforcement officers asked him to do something about it.

5.     About the Accused 

Each motion should contain a section that pictures the accused favorably. Sometime this can be accomplished by describing the accused, although this is not the only way to picture the accused favorably. In a motion to exhume the body of the victim we once used the section about the accused to express his sympathy with the victim and to distant the accused from the acts of counsel in seeking to have the body of the victim exhumed. This section about the accused in that motion seeking to have the body of the victim exhumed read as follows. 

Examples of About the Accused  (note, this is only a thumbnail)



155.  Counsel for Douglas Palmer prepared this amended and consolidated motion and gave a copy to Douglas Palmer.  He also has received a copy of the District Attorney's motion to disqualify Judge Pirtle and the answer to this motion filed by his counsel.


156. Douglas Palmer was asked about changes or suggestions to these legal papers and Douglas Palmer has requested his counsel add this section.  He wants counsel to say to the family and friends of Mr. Merriman that he regrets not only what happened to Mr. Merriman, but he regrets that his counsel are finding it necessary to disturb Mr. Merriman's remains from their final resting place.


Douglas Palmer, in his words, wishes to say, "I'm sorry, I'm sorry about all of this." 

6.   The Instructive Element  

A mixture of facts and law, the instructive element is that part of Action Motions 2K10 with which you must persuade the triers of fact that the demands made through the motion have a basis in reason, legality and morality. 

Examples of the Instructive Element  

A Concise Statement of the Principles of Laws Involved in this Now Alleged Capital Murder Case


In order for Douglas Palmer to be convicted of capital murder and executed, the State of Texas must prove he intentionally killed Mr. Merriman and deliberately engaged in a conduct with the reasonable expectation that it would cause Mr. Merriman's death.


Spectators at the Motion Hearings Are Being Intimidated


A series of incidents that took place during pre-trial motion hearings in this case, on Tuesday, June 26th and Wednesday, July 9th, demonstrate that the right of the public to view courtroom proceedings has been repeatedly and impermissibly abused.


Violation of the Order Is Only One Small Portion of the Prosecutorial Misconduct Engaged In By Randy Sherrod


Randall Sherrod deceives, he lies and he sanctions the use of false information.  The electorate is entitled to receive information about Randall Sherrod's prosecutorial misconduct in order to make informed choices at election time. The people's money should not be wasted on Randall Sherrod's prosecutorial misconduct.

7.   The Rule or Statutory Basis  

Sometimes a statute or rule of court can be cited as a basis for bringing an Action Motions 2K10, or as a basis for the relief requested. If authority by rule or statute exists, clearly quoting this authority strengthens not only the motion but also the court's confidence in the attorney. Citing a statutory basis is also valuable as a record preserving element, i.e., for supporting requests for relief made later in the trial and, perhaps, subsequent appellate process. 

Examples of the Rule or Statutory Basis 

O.C.G.A. §17-5-30 provides that:


(a)    A defendant aggrieved by an unlawful and seizure may move the court. . . to suppress as evidence anything so obtained on the grounds that:

(1)  The search and seizure without a warrant was illegal;


(b)  A motion shall be in writing and state the facts showing wherein the search and seizure were unlawful. The judge shall receive evidence out of the presence of the jury on any issue of fact necessary to determine that motion, and the burden of proving that the search and seizure were lawful shall be on the State. If the motion is granted . . . it shall not be admissible in evidence against the movant in any trial. (emphasis added).  

8.    The State and Federal Constitutional Element 

In state court proceedings all issues of error should be raised to a federal constitutional level, for issues raised to a federal constitutional level can later be litigated in the federal courts either by petition for writ of certiorari after direct appeal or federal habeas corpus.

There are two essential reasons why the state constitution as well as the federal constitution should be interpreted and invoked in the process of determining an accused's rights.

The state constitution should always be studied carefully because it will frequently contain guarantees of a person's rights and restrictions upon the state that do not exist in the federal constitution, or even in other state constitutions.

The state constitution should also be consulted in conjunction with the federal constitution because there are instances in which constitutional provisions as interpreted by the state might actually afford an accused person more rights than do the identical words as interpreted by the United States Supreme Court. In Texas v. White, 423 U.S. 65 (1975), the Supreme Court reversed a decision of the Texas Court of Criminal Appeals concerning a warrantless station-house search of a vehicle [White v. State (Tex. Cr. App. 1975), 521 S.W.2d 244] and remanded the case to that court over the dissenting admonitions of Justices Marshall and Brennan that:  "[i]t should be clear to the court below that nothing this court does today precludes it from reaching the result it did under applicable state law."  Texas v. White, at 72. However, on remand, the Texas Court of Criminal Appeals refused to reach the state law question because trial counsel had failed to raise the state constitutional ground at the trial level.

Our legal education indoctrinates us to frame our constitutional arguments in terms of federal constitutional rights. When a state court is deciding an issue on state constitutional grounds, the basis of the decision must clearly show that it was decided on state grounds or federal courts may assume it was decided on federal constitutional grounds. Michigan  v. Long, 463 U.S. 1032 (1983). 

Examples of the State and Federal Constitutional Element

Opportunity for representatives of the Accused to inspect physical evidence in this case is necessary to preserve the Accused's right to a fair trial, to effective assistance of counsel, to equal protection and due process of law as guaranteed by Art. 3, Secs. 26, 24 and 14 respectively of the Mississippi Constitution and the Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States.  

Motions should even attack and challenge areas of the law that seem to be absolutely written in stone against your client, for example. 

(b) The Florida death penalty statute on its face, as applied in the State of Florida and as applied in Duval County, violates the protection against cruel and unusual punishment, the right to a fair trial by a jury representing a fair cross section of the community, the protection against double jeopardy, due process and equal protection under the law as guaranteed by Art. I, Secs. 9, 16 and 17 of the Florida Constitution and the Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States.  

9.   Request for Relief   

The relief requested should be written in at least three parts. More importantly, the request for relief should become a closing argument to pursue the goals of Action Motions 2K10. Be ever mindful, however -- the goals of Action Motions 2K10 are not always stated in the prayer for relief.   Action Motions 2K10 should request: a remedy which it would be error to deny, a remedy which can be granted, and a remedy which aims for a more perfect level of justice but which will not be granted under the current state of the law.

It is important that the prayer for relief state that the alternative requests for relief are less acceptable than the previously requested relief. Requesting relief in this comprehensive manner takes advantage of established law as well as developing law. Since the prosecution often does not, and most times cannot appeal the relief granted by motions, the body of existing case law does not circumscribe the relief that may be given in response to motions, and basing motions on existing case law alone is simply inadequate representation.

Creativity in the type of relief requested, as well as the quality of the evidence supporting the relief requested may often be decisive in bringing about favorable results. The litigation of Action Motions 2K10 requires evidence which supports the motions. 

Examples of Request for Relief  

Prayer for Relief


For the reasons stated above, Douglas Palmer respectfully requests that the Court:


1) disqualify Randall Sherrod as prosecutor in this case due to his conflict of interest.  This conflict being in part his use of his office for political gain as opposed to the constitutional function of the office;


2)  grant sanctions against Randy Sherrod's gross prosecutorial misconduct, restraining Randall Sherrod from seeking the death penalty in this case;


3)  hold a show cause hearing to determine the reasons for Randy Sherrod's disregard of Judge Patrick A. Pirtle's orders concerning trial publicity and the handling of evidence;


4) dissolve at once the order concerning trial publicity which has been dissolved de facto by this Court's refusing to enforce it and making public statements in the media about the nature of the order after counsel for Douglas Palmer first moved for sanctions against Randall Sherrod because of his violation of the order;


5)  immediately provide funds to counsel for Douglas Palmer for payment of funds expended to date and for funds to continue to investigate acts of prosecutorial misconduct by Randall Sherrod;


6) provide counsel an opportunity to present evidence on this motion;


7) enter an appropriate statement of the Court's judicial misconduct together with a plan to restore equality of treatment to persons of all skin colors in this court; and,


8) grant such other and further relief as justice may require.


Prayer for Relief


Wherefore, for the reasons stated in this motion, the reasons presented by evidence, the reasons to be set out in memoranda of law,  XXXX respectfully requests the following relief which is layered in both time capsules and voluntary compliance capsules:


1.  that the State, instanter, move the court to annul or dismiss the contempt charge against XXXX;


(a)  thereafter, the court annul or dismiss the contempt charge against XXXX, or, if the State fails to make the motion before August 29, 1994,


(b)  that  the court, of its own accord, annul or dismiss the contempt charge against XXXX,


(c)  in the event the contempt charge against XXXX is annulled or dismissed on or before September 9, 1994, the remainder of the relief requested here becomes moot, unless after the annulment or dismissal either the State or the judge seeks further sanctions against XXXX for conduct resulting from this incident.


2.    that if the contempt of XXXX is not annulled or dismissed on or before September 9, 1994, that an independent adjudicator will be appointed consistent with the Rules of Practice, statutes and constitutional concepts set out in the motion;


(a)  that the independent adjudicator annul or dismiss the contempt conviction of XXXX, instanter;


(b) that if the contempt conviction of XXXX is not annulled instanter by the independent adjudicator, that the additional relief set out hereafter will be granted.


3.  that an independent counsel be appointed by the independent adjudicator


(a)  and the independent counsel will be charged to:


1.  obtain all the documents of the present prosecutor; advise all potential witnesses of their rights under the law and Constitution and then begin interviewing all potential witnesses in this matter, including but not limited to the witnesses identified in Section III C 2 of this motion;


2.  that the independent counsel be directed to investigate each aspect of the violation of both XX's and XXXX's rights;


3. that the independent counsel will be compensated by the Court;


4.  that the independent counsel will be directed to file such disciplinary action deemed necessary, including but not limited to the following:


(a)   report of all facts and findings to the Attorney Registration Commission for Disciplinary Proceedings;


(b)  report of all facts and findings to the Judicial Inquiry Board;


(c) a report of all facts and findings to the Grand Jury of this Court; and,


(d) a report of all facts and findings to the County Treasurer and governing body;


4.That the following disclosure relief will be provided:


(a) the State make all constitutionally mandated disclosures of documents and information requested in this motion to Millard Farmer, counsel for XXXX, at P.O. Box 1728, Atlanta, GA  30301; or by expedited delivery to 151 Nassau Street, Atlanta, GA  30303; or by facsimile to (800) xxx-xxxx;


(b) the State make all statutorily mandated disclosures of documents and information in this motion to Millard Farmer, addressed as identified above;


(c) the State disclose all documents and information, even if only subject to discretionary disclosure and the State's ethical obligations;


(d) admissions by the Prosecutor of all factual issues not in dispute, and detailed reasoning for disputing all other factual issues;


(e) admissions by the Prosecutor of all legal issues not in dispute, and detailed reasoning for disputing all other legal issues;


that an evidentiary hearing be  held on this motion;


for such other and further relief  as justice may require.         

10.   Attachments 

One of the most important and valuable aspect of Action Motions 2K10 is attachments to the motion. Attachments not only assist in the persuasion function of a motion but can also serve a function in record preservation.

Attachments can serve as a preface to an offer of proof of evidence that you are attempting to present in your request for an evidentiary hearing on the motion.

Orders from other trial court granting relief on similar motions is just another of the many type of documents that can be used as an attachment to add to the effectiveness of a motion. 

11.    The Appropriate Use of a Summary Type of Index  

The use of a summary type of index is very helpful in fulfilling the goals of Action Motions 2K10.   The summary type of index is relatively easy to compile if the motion is written in the suggested style for Action Motions 2K10. Each of the section headlines is indexed. Once the index is complete it should serve almost as an executive summary of the motion. The summary type of index should be written in a manner that entices the reader to read the entire motion.

Example of the Summary Type of Index 



1. Factual Analysis

1.1  Summary of Facts

1.2  The [CLIENT]'s Case 

1.3  [CLIENT'S COUNSEL] Began Representing [CLIENT]  

1.4  [CLIENT'S COUNSEL] Filed A Motion To  Withdraw 

1.5  After the Hearing on the Plea Withdrawal, the Court Began A

      Secreted, Ex Parte Investigation

1.6 [CLIENT'S COUNSEL] Next Appeared Before the Court With

       [CLIENT],  Expecting a  a Ruling On His Motion

1.7 [CLIENT'S COUNSEL] Was Held In Contempt

1.8 [CLIENT'S COUNSEL] Had No Opportunity For A Hearing On

      His Contempt and Was Not Afforded and the Contempt Finding

      Was Otherwise Devoid of Protections Afforded by the Local

      Rules, the State Statutes and both the State and Federal


2.  The Legal Issues

2.1  Sources of Applicable Legal Standards in General in Contempt


      2.1.1  Overview of these General Legal Standards     

2.1.2  The Local Rule Controlling Contempt Adjudications

2.2  Contempt Adjudication Issues Relevant to this Case 

2.2.1  The Indirect, Direct and Summary Contempt Issue   Rule of Practice 13.01  Illinois Law  The U. S. Constitution  The Prosecution Should Admit or Deny the Following   

2.2.2  The Absence of Notice Issue  Rule of Practice 13.00  Illinois Law  The U. S. Constitution  The Prosecution Should Admit or Deny   

2.2.3  The Hearing Issue  Rule of Practice 13.01  Illinois Law  The U. S. Constitution   

2.2.4   The Issue of a Jury Trial  Rule of Practice  The U. S. Constitution  The Prosecution Should Admit or Deny.   

2.2.5  The Excessive, Unjustified and Unauthorized Punishment Issue   

2.2.6  The Selective Prosecution, Yick Wo v. Hopkins, Issue  

2.2.7  A Constitutional, Statutory and Commonsensical Analysis of the

            Alleged Contemptuous Act.   

2.2.8  The Independent Adjudicator and Judicial Misconduct Issue  The Ex Parte Hearing Reason for Another Judge  The Bias or Prejudice Reason for Another Judge  The Rule of Practice 13.01(c)(4) Reason for Another Judge   

2.2.9  The Prosecutorial Misconduct Issue   

      2.3  The Duty and Obligation to Disclosure  

2.3.1  The Constitutional Duty to Disclose  

2.3.2  Statutory Duty to Disclose     

2.3.3  Ethical and Expediency Reasons to Disclose   

2.4  The Timely Need for and Use of the Disclosure Materials  

2.4.1  Pre-briefing Disclosure Is Necessary  

2.4.2  The Disclosure Material Could Be Used For  


2.4.3  The Required Scope of Disclosure  Definitions and Directions  The Following Persons Have Information And  

Therefore Are Covered By This Disclosure  

Request  The Information that is Needed to be Disclosed  Materiality of Disclosure Demand  Disclosure Demand Relating to Possible Misconduct  The Method to be Used in Obtaining Disclosure from

      Judge [Circuit Judge]  

3.  Conclusion 

Prayer for Relief

ATTACHMENTS     [Note:  All Attachments are omitted from this Example]


Attachment 1                    [Client's Counsel]`s Motion [filed earlier]  

Attachment 2                    Report of Dr. [________]   

Attachment 3                    Transcript of Guilty Plea  

Attachment 4                    Copy of Sentencing Transcript  

Attachment 5                     The following documents  

•   Notice of Appearance;


•   Notice of Filing; 


•   Motion to Withdraw Notice of Appeal In Order To Hear[CLIENT]'s Fitness Petition;


•   Motion to Stay Mittimus Pending Disposition of [CLIENT]'s Fitness Petition;


•   Affidavit of [CLIENT's mother];


•   Motion for Fitness Hearing;


•   Notice of Motion; 


•   Order Staying the Mittimus; 


•   Notice of Mittimus;


•   Affidavit of ____________;


•   Motion to Attach Affidavit of __________ to Motion to Withdraw Guilty Plea;


•   Memorandum of ____________;


•   Affidavit of ____________;


•   Notice of Motion;


•   Motion to Withdraw Plea of Guilty; and,


•   Certificate of ___________.   

E.  Litigating Action Motions 2K10  

Strategic Subpoenas

Wait, this paper is about motions. Why is a paper about motion now discussing subpoenas.

Without presenting evidence, there can be no Action Motions2K10. The strategic subpoena is one of the ignition systems necessary for Action Motions 2K10. Catchy titles for motions, innovative subject matter for motions and even favorable publicity cannot assure the proper ignition for Action Motions 2K10.

The strategic subpoena begins to tell the story and accomplish the goals. An important element of the strategic subpoena is the production of documents portion of the subpoena. 

An example of a request for documents is the following request used in a post-conviction hearing. 



1.   All documents relating to the televised CNN Presents segment, “Amazing Grace.” This segment was recorded, in part, in the residence of xxxx on or about February 28, 1994 and was first broadcast on April 9, 1995.


2.  All documents relating to Court TV's involvement in the trial of xxxx.  These include interviews and segments in which you appeared or were depicted between April 7, 1993 and the present.


3.  All documents relating to the WSB-TV newscast which showed you strutting (walking in an animated manner with exaggerated movements of upper and lower extremities) down the hall of the Fulton County Courthouse very soon after the verdict in the trial of xxxx.  


4.  All documents relating to other TV broadcasts, between April 7, 1993 and the present, in which you appeared or were depicted.


5.  All documents in which you appeared and/or were recorded and/or were depicted or described relating to or appearing in radio broadcasts and/or audio recordings, between April 7, 1993 and the present.


6.  All documents in which you appeared or were depicted relating to or appearing in newsprint or other print media, between April 7, 1993 and the present.


7. All documents relating to legal seminars or oral presentations, between April 7, 1993 and the present, in which you participated or presented information.


8.  All documents concerning any communications between you and xx or concerning xx, including, but not limited to, any interactions between you and xx between April 7, 1993 and the present.


9. All documents concerning any communications between you and xx or concerning xx, including, but not limited to, any interactions between you and xx between April 7, 1993 and the present.


10. All documents concerning any communications between you and xx or concerning xx, including, but not limited to, any interactions between you and xx between April 7, 1993 and the present.


11.  All documents concerning personal funds supplied by you to assist in the investigation and/or prosecution of  xxxx.


12.  All documents concerning funds and/or services provided by other than governmental entities for the prosecution and/or investigation of xxxx or any facts relating to the fire at the residence of xxxx.


13.  All documents received by you from the Georgia Bureau of Investigation or other law enforcement agencies relating to the case of State of Georgia v. xxxx.


14.  All documents concerning information relating to the date of any test for accelerants in the residence of xxxx and the date of receipt by the office of the District Attorney of Fulton County of the report for any tests relating to these accelerants.


15.  All documents concerning any compensation, reward or benefit which was provided any persons testifying at the trial of xxxx.


16.  All documents concerning any compensation, reward or benefit provided to any person related to the case of State of Georgia v. xxxx.


17.  All documents concerning the supposed “beatings” Ms. xxxx received at the hands of Mr. xxxx.


18.  All documents concerning other cases on which you worked between the night of April 7, 1993 and the day of closing arguments in the case of State of Georgia v. xxxx.


19.  Copy of your W-2, W-4 and 1099 forms and federal income tax returns for the past four years.


20.  All documents reflecting gifts, contributions, or donations, rewards or awards you have received from April 7, 1993 until the present excepting only gifts from persons related to you by blood or marriage within the 7th Levitical degree.


21.  All documents reflecting gifts, contributions, or donations, rewards or awards you have made from April 7, 1993 until the present excepting only gifts given to persons related to you by blood or marriage within the 7th Levitical degree.


22.  All documents reflecting terms of compensation to you by any entities other than the office of the District Attorney of Fulton County from April 7, 1993 to the present.


23.  All documents relating to any complaints about your conduct as an attorney or about your conduct as a prosecutor in any case during the time you have been employed by the office of the District Attorney of Fulton County.


24.  All documents relating to any application you have made seeking any judicial position during the time you have been employed by the office of the District Attorney of Fulton County.


25.  All documents relating to any application you have made seeking employment within the last five years, including, but not limited to, employment at Georgia State University.


26.  All documents related to classes you have taught or are currently teaching at Georgia State University.  This includes, but is not limited to, lesson plans, course materials, and lecture documents.


27.  All documents you have written about the case of xxxx that are not a part of the official record of this case.


28.  All documents related to written or oral communication with persons who testified during the trial of the case of State of Georgia v. xxxx from April 7, 1993 to the present.


29.  All documents related to written or oral communication with persons about xxxx since April 7, 1993 to the present.


30.  All documents that relate to any justification for you questioning Dr. Joseph Burton about being called “Lying Joe Burton.”


31.  All documents relating to any persons entering the residence of xxxx from April 7, 1993 to the present.


32.  All documents depicting any view of the scene of the residence of xxxx  from April 7, 1993 to the present.


33.  All documents depicting any view or reflecting any test, test results, experiment or simulation that in any way relate to the case of the State of Georgia v. xxxx or the fire at the residence of xxxx, including, but not limited to, the video made during the presence of the CNN crew at the residence of xxxxand the test by xx made before the trial of xxxx of the Neat-Lac burning against a board.  

The strategic subpoena is most often accompanied with the following attachment that demonstrates to the court the courtesy you are extending to the witness. The following is an example of this type of attachment. 

ATTACHMENT 1 to Subpoena


NOTE: Counsel for xxxx are coordinating the subpoenas and documents subpoenaed for the hearing in this case scheduled to begin Thursday, April 11 at 9:00 a.m. through the office of Millard Farmer, P.O. Box 1728, Atlanta, GA 30301, telephone (404) 688-8116; fax: (404) 577-0643.  Someone at this office will be available to discuss your attendance and your production of documents pursuant to this subpoena. Please inform the person answering the phone that you wish to talk with someone about your subpoena for this case. There will be someone available from 9:00 a.m. to 5:00 p.m., Monday through Friday.  Persons who are subpoenaed are requested to call as soon as possible with scheduling or document production problems. The purpose of these calls is to arrange for a schedule, not only for attendance, but also a time to produce the subpoenaed documents. The same documents, in some instances, have been subpoenaed from more than one witness. It is not intended that each witness be burdened with production of the documents or items subpoenaed if there can be an agreement as to the person who will supply the document or item subpoenaed.  Persons who wish to be on call for attendance may make this request and everything possible will be done to accommodate both personal and professional obligations and schedules. Please note the time and date on your subpoena; not everyone is subpoenaed for the same time and date. Please call as soon as practical or have your counsel call promptly so that this hearing can be facilitated without a number of people being inconvenienced  by last day and hour requests for accommodations.  It will be difficult to adjust the scheduled time for your appearance close to the hearing date. Please call promptly for the convenience of all involved; however, please understand this requested call is not required by the court. 

The strategic subpoena is accompanied by a list of descriptions much the same as descriptions used in notices to produce documents in civil cases.  An example of this attachment of descriptions is as follows. 

ATTACHMENT 2 To Subpoena



The following definitions are an integral part of these requests for documents and are applicable throughout this request.


"Document", either singular or plural, is defined as any and all originals, or if not available, true copies of all memorandum, reports, appraisals, evaluations, correspondence, receipts, payment vouchers, accounting records and books, communications, interoffice communications, intra-office memorandum, inter-agency communications, electronic recordings including computer generated and/or preserved recordings, video recordings, audio recordings, summaries of conversations, summaries of memorandum of meetings or conferences, list of persons attending meetings or conferences, diaries, records or summaries of interviews, investigation or reports, summaries of negotiations, agreements, contracts, agency rules, agency policies, office manuals, invoices, canceled checks, journals, ledgers, file cards, index cards, indices, deposit slips, data processing cards, computer or business machine printouts, electronic recordings, work papers, statements, financial statements whether audited or unaudited, leases, speeches, information provided to the media, press releases, advertisements, pamphlets, circulars, professional letters, annual and other reports, documents filed with government agencies, reports of experts and research personnel, draft and preliminary copies of any of the foregoing, marginal comments appearing in any document and all other writings and data compilations, including any written, printed, recorded or graphic matter, photographic matter or similar reproductions, however produced or reproduced or tangible things upon which words or phrases are affixed.


The effective use of subpoenas in litigation is a little used skill. The requirement to bring documents aspect of the subpoena should be written much as the concentric statements concept in Action Motions 2K10.

In fact, the subpoena should be a modified motion. It should command the person being subpoenaed to bring numerous items with him/her to the Action Motions 2K10 hearing to be used as Energized Evidence. 

Energized Evidence 

Action Motions 2K10 need evidence. This evidence is needed to ignite the presentation of the motion and to give the record teeth. Many lawyers “argue” motions. A motion that is merely argued is just another motion, it is not a Action Motion 2K10.

To produce the Energized Evidence required to qualify a motion as an Action Motion 2K10 it is necessary to understand a few other concepts. 

CHARISMA  (ke riz' ma)  the special quality that gives an individual influence, charm, or inspiration over large numbers of people.  

POWER  (pou' er)  the ability or capacity to act or perform effectively.

. . . two important keys to Action Motion 2K10. 

Time is a critical element in the presentation of Action Motion 2K10. There are some limitations on when motions may be presented, but often you can control both the time of filing and the time of presentation.

To present motions properly, evidence should be presented on all factual matters raised by the motion and any other necessary facts that affect the issues. It is not sufficient to simply "argue" motions.

If funds are needed to obtain evidence and to present it properly, specific motions for funds, supported by evidence to show the need for funds, should be made. When possible, motions for funds should be frequently renewed with a specific showing of need. If the client is not completely indigent and can pay attorney's fees or other fees for defense services, this should not be assumed to preclude the need for funds from the State to adequately defend the charges.

If the trial court refuses to hear evidence on behalf of any factual matters contained in the motions, or if a denial of funds makes it impossible to present all of the evidence needed, a specific offer of proof of what evidence could have been presented -- framed in a manner which is favorable to the accused -- should always be made to the trial court.

There are certain kinds of motions that should be presented out of the hearing of the public. These motions can be presented in camera. The in camera presentation of a motion can be the subject of a motion itself. The restrictions on an in camera motion can include not only a hearing outside the presence of the public, but also, a sealed decision together with a concealment of both the motion, and the motion to have the motion heard in camera.

Examples of this type of motion are motions in limine and motions for directed verdicts of acquittal. These in camera motions shield the client from the adverse effects of both a denial of the motion and the prejudicial evidence that may be presented during the motion hearing. The accused also has the right to an ex parte hearing on an application for funds.

At any stage of the proceeding where the rights of the person accused are affected by the denial of a prior motion, you should renew the motion and supplement it with additional evidence, or, if prohibited from presenting evidence, make an offer of proof.

The ways in which motions should be formulated to communicate information depend in great part upon an individual's communication skills and understanding of the many ways in which messages are sent and received.

We may be familiar with the use of psychologists to help interpret body language of potential jurors. Body language is but one of the many "languages" we all speak, often unconsciously. Many other "languages" exist that can assist or affect communication by spoken word.

There are things that allow us the security of communicating effectively.  One of these things that provides security is having a model of representation.  Another is having a strategy specialist to oversee the adherence to the goals of the model of representation.

F.  Action Motions Plus 2K10 Summary

Action Motions 2K10 run on all platforms. They operate smoothly if your representation model is primarily functioning with legalistic reasoning. These Action Motion 2K10 run effectively with the primary systems of persuasion and influence. Without any question, Action Motions 2K10 zoom with conflictineering.

     Action Motions 2K10 is a way of thinking more than a technique.  THINK!


Conflictineering 2K10

Conflictineering is creating or using an event to expose the hypocrisy or immorality of a person involved in a dispute and then restoring order in return for a fair disposition of the dispute.

This paper is the 2K10 update of conflictineering. It requires an independent processor, a head equivalent to a Ram, with only the facade of compatibility with all segments of society. To run: follow the suggestions a:\ to z:\ and then rewrite the program as it runs to your life drive.

It's never been easy to balance the scales of justice for a person whom the prosecutors in our society have accused in a case with serious charges, or as far as that goes for any indigent person. The criminal justice process is more sanitized today than ever; however, the task of receiving a fair disposition of criminal accusations is as difficult as representing a prisoner of war before a military tribunal.

Presently, obtaining dispositional fairness in a case with serious charges is almost impossible. All of the great protections of our Constitution are being interpreted in a way that eliminates a fair disposition for a person once guilt has been determined. In today's market, you must waive any opportunity for dispositional fairness if you choose a jury trial and do not win each and every count in the charging papers.

The question from many today is, how can we cut our losses and prevent the leaders of the coup d'état from trampling us into total submission? The answer is the same now as in the past -- it is only clearer now -- we must use techniques that don't rely upon judicial mercy for success. When we depend solely upon the fairness of the judge, we suffer the full consequences of the political winds.

The criminally accused, and especially those in serious cases, need true representation. True Representation means engaging in conflict, dispute resolution and persuasion while still effectively litigating constitutional concepts. Although many conventional lawyers are initially overwhelmed at the thought of balancing these skills, they are not mutually exclusive, and their simultaneous use is necessary for true representation. This section's goal, together with the presentation, is to suggest a method for enhanced representation.

CONFLICTINEERING - This involves risk for the inept; high gain for the skilled. We tried for over a decade to describe this technique by recounting specific acts that should be done -- we opt now to define the technique and identify it with our new word, "conflictineering." Describing the specific acts has missed the mark; first, because reproducing these specific acts often fails to cause the original results, and second, because replicating the specific acts is too limiting on the powers of the technique.

Attorneys are the only people in our society authorized to use the full spectrum of forums to resolve disputes. Most frequently, attorneys do not analyze representation in terms of dispute resolution. This is almost universally true of criminal defense attorneys; the natural tendency is to respond to the charges and react within the format of the criminal justice system. This reactive method of defense is the easiest, and best insulates an attorney from criticism. Representation that does not include dispute resolution, problem solving and negotiation as primary goals is deficient.

Most attorneys want to limit the scope of their representation to tasks that they can do at the courthouse. Effective dispute resolution, problem solving and negotiation usually require a much larger arena than the courthouse. 

A.  Defining Conflictineering 

There are many facets to conflictineering; this mandates a definition that is both complex and constantly evolving. The following explanation begins the task of articulating this definition of "conflictineering."

Conflictineering begins by creating and/or using an event or action to expose the hypocrisy and/or immorality of a person involved in a dispute. The exposure of the hypocrisy and/or immorality is done in a way that mandates the person being exposed know that he/she is violating an acceptable agenda. Sometimes, this agenda is a law-based agenda, sometimes a social agenda, and other times, a moral agenda.

This conflictineering is designed to pierce the image of the person that he/she presents as him/herself. Features of this presented self image can be many things because, remember, this is an image fabricated by a person's agenda. Although in this paper, the targets of conflictineering are presented as people, institutions can be portrayed as targets to attack people who have publicly committed to the policies of the institution.

B.   Conflictineering in General 

 Conflictineering obviously combines the word "conflict" with part of the word "engineering" to defuse and expand the traditional meaning and connotations of "conflict." "Engineering" involves putting scientific knowledge to practical use, so we include "-ineering" to infuse "conflictineering" with the sense of action informed by knowledge.

For over a decade we have tried to explain what we have only recently termed "conflictineering." The difficulty in explaining conflictineering has been due, in part, to our lack of understanding of this complex concept. Hopefully, our explanation has progressed; we feel our understanding has.

People are uncomfortable with any disturbance of their perception of order. They do not like conflict directed toward them, and generally seek to avoid it. The natural human reaction to conflict is a flash of defensiveness followed by an attempt to smooth out the conflict. In the dispute resolution process, we need to use conflictineering to receive an advantage from other people's desire to smooth out conflict and restore harmony. Harmony can be exchanged for a fair disposition of a case.  Prosecutors, judges and law enforcement officers want to keep the focus of cases on the facts of the crime and the "vicious criminal" who committed it. As long as this remains the focus, they are on sure political ground and will receive nothing but political benefit and smooth sailing in pursuing the maximum punishment allowed by law.

We need to use conflictineering to create social and political consequences to our adversaries. Part of conflictineering is raising issues of injustice in the system, e.g., issues of racism, issues of political or ethical misconduct, issues of burdensome financial costs and other inequities. The conflict created can be used as negotiating leverage to obtain a fair disposition of the charges. 

C.  Enhancing Opportunities for Conflictineering 

1.  Have a Motions Strategy 

The Action Motions 2K10 sections provides a detailed description of motions. The Action Motions 2K10 sections stresses the importance not only of filing numerous motions, presenting substantial evidence to support the motions, but additionally the importance of using motions as an integral part of the advocacy systems being used.

Motions not only consume time -- a commodity that is rare with both courts and prosecutors; moreover, as outlined below, they are essential to conflictineering and the three other basic advocacy systems. 

2.  Bring Supporters to the Courthouse 

The dynamics of the courtroom and the justice dispensed changes when the courtroom is packed with supporters, including the client's family and as many others as you can find. 

3.  Establish a Reputation for Being Litigious 

You must establish a reputation of being an advocate that does not accept adverse rulings. Discuss injustices with the media, attempt interlocutory appeals or an ancillary action, such as jail conditions litigation. 

4.  Engage Community Leaders 

Involve people in the community not normally in the criminal justice process to contact the decision makers who can effect the disposition of your case. The people can include a wide range of leaders, including, but not limited to, both political and religious leaders. 

5.  Encourage the Media's Involvement 

Assuming the offensive to gain some public support for your client is often advisable. The media is often vital for the issues you have chosen for the conflictineering events. If you fail to involve the media, the only information about the case is going to be the prosecutor view of the case which the media will obtain from law enforcement. 

6.  Be Confrontational 

The confrontation we are advocating can be direct or indirect, overt or subtle, and need not involve open hostility. Confront the judge, prosecutors, law enforcement officers and others about their own weaknesses including their racial, sexual and other forms of discrimination. This undermines the moral validity of their agenda.

7.  Become Involved in Community Organizing 

Often, the only power that the downtrodden have in our society is gained through protest in the community. Support this type action to benefit a person you represent. 

8.  There Can Be Numerous Other Ways To
  Enhance Conflictineering

These examples which enhance conflictineering are only a beginning.  The scope of effective conflictineering strategies is unlimited. There are numerous specific acts that have been integrated and used while engaging in conflictineering, but talking about specific acts missed the mark in explaining the concept. For all of the ways conflictineering has succeeded in the examples above, there are instances where it has failed because of a poor understanding of the conflictineering concept.

 D.  The Purpose of Conflictineering

In a sentence, the purpose of conflictineering is to obtain an advantage in resolving an issue. The purpose of conflictineering and the reasons for its use are very much interrelated. We use conflictineering to obtain power.

The wealthy, the socially prominent and the politically powerful  individuals in our society have daily access to power that we try to obtain for a downtrodden person only on rare occasions. The powerless need every possible technique and skill to help balance the scales of fairness for them in a society that promises, but fails to deliver equality. By using conflictineering, a minority group or an individual can strongly encourage an individual or entity that has control over their fate, or even most of society, to weaken its position. Conflictineering is changing the direction and desires of your adversaries. It gives power to those otherwise denied power.

Two surprising benefit to advocates who frequently use conflictineering have been

     (1)  a high overall approval rating from their clients and

     (2) the ability to sustain a higher than normal energy and interest

           level in resolving the litigation.

We must, therefore, add these benefits as additional purposes for using conflictineering. Anything that increases client confidence in us as their advocates and sustains our energy level is an unreplaceable asset. Clients who have confidence in their advocate most often follow the advice of the advocate and therefore become team members who help reach a solution and are not a part of the problem. 

 E.  Preparing for Conflictineering  

1.  Gaining Information 

  One of the most important steps in preparing for the conflictineering process is gaining information about the adverse parties. Learning everything is important: social interests, financial status, family interests, health conditions, work load, political tendencies, sports interests, and many other things. It is critical to learn not only the adversary's status in the community, but also, the community's perception of this person -- this includes the person's strong and weak points. Correct information is a core ingredient in effective conflictineering. 

2.  Subject Matter 

Using the main dispute of the litigation as the subject of the conflictineering is not necessary, or even desirable in most conflictineering events. Lawyers have stymied the development of any concept similar to conflictineering for years thinking the case-in-chief was the only source for the subject matter of the conflict. By selecting a subject matter other than the dispute in the litigation, you are allowed greater flexibility and broader options for sustaining the conflict until you can prevail.  Selection of the subject matter for the conflictineering event is another crucial area of preparation. 

3.  Testing 

After gaining information, you should next test market a few issues. This can be done in many ways; the easiest is by testing different ideas for a conflictineering event on various people, first friends, and the other people in the community. One important inquiry is to decide if your information is correct, another is to decide if anyone is interested in the issues you plan to create. Using issues that easily polarize people is advantageous.

4.  Timing 

You should select an opportune time to begin the conflictineering.  This can be as crucial as anything in the process. The key to selecting the appropriate time to begin is being flexible.

Being flexible enough to delay the beginning is important or even scrap the whole event if conditions change. Your own health considerations and work load are as large a consideration for the timing process as the overload of your adversary. Conflictineering is not a low stress event. 

5. Financial Considerations 

Whether a private practitioner or a public defender, you must have the financial resources, including time, and the willingness to expend these resources to sustain the conflictineering process to its conclusion. You can't begin an event that will fold due to inadequate commitment of financial resources. The plan for conflictineering must include a budget for both time and money. This budget must be as flexible as any component in the conflictineering process.

These financial considerations are discussed here because we are constantly amazed at the number of lawyers that fail to realize how their performance in one case affects all of their other cases. For many lawyers in private practice, each project must be cost-effective or they're angry with their client and become unproductive.

Likewise, many public defenders do not put enough time in some cases because the case doesn't seem to justify the time. If each project must be cost-effective, or time-effective, maybe you should not venture into conflictineering; it is not always cost-effective or time-effective.  For many institutionally employed lawyers, peer acceptance, easy working conditions, approval of their agency's funding source and approval of their behavior by their agency become important considerations. To practice effective conflictineering, you must be prepared to make sacrifices in these areas, for they are often incompatible with true representation of powerless or indigent clients. Many institutions established to represent indigents are opiates for the sponsors. Conflictineering, if done correctly, removes the opiates from the "do-gooder" segments of society that are the pseudo-supporters of indigent representation. When you are preparing for the conflictineering process, be careful in structuring the people who will work on the team. If a person practices life "pro se" -- be careful. 

6.  Written Materials 

Using written materials in the conflictineering process is not necessary, however, for most events, using this medium is best at least partially. In writing, careful consideration should be given to writing the material in newspaper style. The written materials should most often be written to interest the public. Consider a format that includes headlines, short paragraphs and quotable phrases. If you use written materials, you may want to consider releasing "previews."   For example, you may want to send a letter to your adversary informing him/her that you have been provided information and you seek confirmation or denial of the information before you act further. Then, in the letter, state the time and day you will proceed. 

7.  Team Concept 

For people who do not presently work in a team concept environment, the preparation process for conflictineering must include developing a team.  There must be group discussions, planning, and division of responsibility. At a minimum, there needs to be some assignment of roles. 

8.  Discussing the Conflictineering Plan 

The surest way for a conflictineering event to fail is for the people working with you to lack information about the conflictineering plan. 

9.  Flexibility 

A rigid plan and a predetermined script limits the power of  the conflictineering concept. It is necessary to talk about and think through alternative plans and to seize opportunities that present themselves. 

10.  Goals 

It is necessary to plan a goal for the conflictineering process. The goal should be discussed with the person you represent before you begin. If the person you represent does not commit to the goal, you may be beginning another dispute resolution task with this party after the primary conflictineering goal is reached.

The goals you develop for your conflictineering process must be feasible. Establish ambitious goals, but don't be ridiculous. As with everything in this process, the goals must be flexible, but you and your client cannot become greedy as the process begins to succeed. Succeeding in accomplishing a conflictineering goal you do not believe is fair to all concerned is difficult. Conflictineering requires a goal that can command a strong personal commitment. 

11.  Consequences 

Adequately preparing yourself and other people on the team for the consequences of the conflictineering process is often the difference in success and failure. Thinking your adversary is not going to use her/his power to repel your attack is simply naive and unrealistic. The often used cliché of exercise enthusiasts, "no pain -- no gain," is a necessary warning for your client and other people on the team who are new to the conflictineering process. 

F.  Concepts of the Conflictineering Process 

One concept of the conflictineering process is to slip carefully between the skin of the presented self of your targeted person and her/his true self. You then begin to turn the targeted person inside out. After this, you display and present the undesirable portions of the true self of your targeted person to his or her support group and if necessary, the public. With this process, you should have the targeted person, their support group and the public not pleased with what they see.

Another concept of conflictineering is to consume a large percent of your adversary's energy, time and financial resources on matters that are not very important to him or her. Somewhat a part of the concept described above, is making your adversary's life unpleasant with the things you do in the conflictineering process. You paint a mental image of your adversary that they do not like portrayed to their peer group or people in general. Next, you repeatedly display this image of your adversary until the image becomes people's perception of your adversary.

These are but a few of the concepts that can be an integral part of the conflictineering process.  Developing concepts is a large part of the process.

G.  How to Begin the Conflictineering Process


The things you do to start this process relate to the success you can expect.  Of course, you have to choose the medium you will use to begin the process. Things to consider include the following. What will be the event?

Will the event begin with oral or written communications? Will the beginning be private or public? Which person on the team will cast the first stone?

Despite all these considerations, it is of prime concern that you attempt to get the targeted person to commit to a position. For our purposes, it is not at all necessary that the targeted person take a position; however, it is essential that all involved know you attempted to get the targeted person to take a position. If the targeted person denies the facts, you begin the documentation and proof process to expose his lies; if the targeted person says nothing or admits the facts and charges, you have accomplished the beginning goal. Failing to answer the charges will be your adversary's first mistake; getting your adversary to answer will be your first success.  

H.  How to End the Conflictineering Process 

 With great difficulty, but often great relief, is the way the conflictineering process is ended. If you receive the relief you need, you often have to eat some crow to allow your adversary some reward from the bargain. Withdrawing from the conflictineering process is hard once you have mentally, physically and financially geared up for it.

You must pounce on the opportune moment to gain the advantage you have sought since beginning the conflictineering process. Allowing the conflictineering process to become a bickering battle is very easy; if this happens, you lose the benefits and suffer the liabilities.  Most people's idea of conflict is engaging in a behavior that satisfies their ego and harms or angers a person who is their adversary. People who engage in this type of conflict are generally wasting their time and even if they have been productive, they can't stop at an opportune time for their effort to become dispositive of the subject dispute. Conflict by itself is meaningless; conflictineering has a stopping point that is crucial to its success.

One reason conflictineering works is that the attacked person wants to restore his or her self image.

You should have a track record of allowing this to happen. You should, most times, leave a glimmer of hope that this can quickly happen. Your reputation for productivity in the conflictineering process is an asset that allows the process to become cost-effective after a short period. Ending the conflictineering process and understanding the time to resolve the dispute is easier if during the preparation segment of the process you have established a realistic goal.  

I.  The Forums for Conflictineering 

 The forums for using conflictineering are only limited by the imagination and innovativeness of the people using the process.  Conflictineering events can be as high profile as street demonstrations and as low profile as a conversation between a judge and a lawyer casually meeting at a social event.  Most frequently, the forum becomes the courtroom, no matter where you may have begun the process.

The advantage of the courtroom as a forum is that your adversary is confined to its physical presence during that part of the conflictineering process. This gives an excellent opportunity to gauge his/her reactions.  There are no forums that are exempt from the  conflictineering process. 

J.  Qualities of People on Conflictineering Team 

 The team of people who are engaged in the conflictineering process should be diverse. It is important that a person who is an expert in understanding strategy is on the team. At least one person on the team must have superior knowledge of all aspects of the law. This process is not one that can work without the involvement of skilled legal talent. Another person on the team should excel in the skills of oral and written persuasion. The team needs an innovative and creative person; people of high energy and a strong commitment to the project are also mandatory members of the team.  It is an advantage to have access to a person who has a friendly working relationship with the judge, prosecutor and law enforcement in the community. Thinking you can always have a person of this status on the team is not realistic. If this type of person is on the team, you must use the utmost care to insure this person does not neutralize the polarization aspect of the conflictineering process.

K.  The Gentleness of Conflictineering 

 Much of the focus in this paper has been on the street fighting aspects of conflictineering. The concept of conflictineering is not one of civil disobedience in the judicial process, although the boundaries could extend to this type of behavior.

The process of conflictineering is not one of total confrontation.

It is not a process of arrogance or of rudeness.

You are very wrong if you see it as merely a way to only exchange insults.

It is not a process that requires a constant loud, commanding, oral presentation.

Conflictineering is a sophisticated ballet of both words and behavior that takes on operatic characteristics. If it is not done in this manner, it can become a project of creative destruction. 

L.  Why Conflictineering Works  

There is, of course, no simple explanation for why conflictineering works when properly applied. Some reasons are apparent: people dislike any form of conflict, and especially conflict directed to their weaknesses. The concept of conflictineering hinges upon this aversion to conflict and disorder. When we create focused disorder, we suddenly find in our possession an immeasurably valuable bargaining tool -- the ability to restore order -- that can be traded in return for the dispositional fairness that is otherwise too often denied to the powerless members of our society.