When Pretrial Motions Go Rogue, Count on Captain Justice

By Robert Ambrogi Esq
In the annals of litigation, it will forever be remembered as the "Captain Justice" memorandum.
 
It came in response to a motion in limine that an assistant state attorney general filed in a Tennessee criminal case. The motion asked the judge to ban the defense attorney from referring to the assistant AG as "the Government" during trial.
 
"The State has noticed in the past few years that it has become commonplace during trials for attorneys for defendants, and especially Mr. Justice, to refer to State's attorneys as 'the Government' repeatedly during trial," the motion argued. "The State believes that such a reference is used in a derogatory way and is meant to make the State's attorneys seem oppressive and to inflame the jury."
 
No, you did not misread that. The defense attorney's name, conveniently, is Mr. Justice—Drew Justice to be precise.
 
So Mr. Justice did what any attorney would do: he filed a response.
 
His response started out mild-mannered enough. He cited cases showing that judges themselves often refer to the prosecution as "the Government." He also presented legal arguments that the requested ban on terminology would violate his right to free speech.
 
At that point, however, he suddenly turned from mild-mannered defense counsel to satirical superhero. Should the court disagree with him, he wrote, and let the parties pick their own designations and ban words, then he had a few additional suggestions.
 
He started with his client, who no longer wanted to be called "the Defendant."
 
This rather archaic term of art, obviously has a fairly negative connotation. It unfairly demeans, and dehumanizes [him]. The word "defendant" should be banned. At trial, [he] hereby demands [that he] be addressed only by his full name, preceded by the title "Mister." Alternatively, he may be called simply "the Citizen Accused." This latter title sounds more respectable than the criminal "Defendant." The designation "That innocent man" would also be acceptable.
 
Of course Mr. Justice was not going to stop there. He also wanted to be called something other than "lawyer" or "defense attorney."
 
Rather, counsel for the Citizen Accused should be referred to primarily as the "Defender of the Innocent." This title seems particularly appropriate, because every Citizen Accused is presumed innocent. Alternatively, counsel would also accept the designation "Guardian of the Realm."
 
Mr. Justice went on to suggest that he should also have a military title to match that of counsel for the attorney general.
 
Whenever addressed by name, the name "Captain Justice" will be appropriate. While less impressive than "General," still, the more humble term seems suitable. After all, the Captain represents only a Citizen Accused, whereas the General represents an entire State.
 
Continuing with his argument, Mr. Justice suggested that the court also ban the word "defense."
 
The whole idea of being defensive, comes across to most people as suspicious. So to prevent the jury from being unfairly misled by this ancient English terminology, the opposition to the Plaintiff hereby names itself "the Resistance." Obviously, this terminology need only extend throughout the duration of the trial — not to any pre-trial motions. During its heroic struggle against the State, the Resistance goes on the attack, not just the defense
 
Mr. Justice concluded his response with this request to the court:
 
WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance, primarily asks that the Court deny the State's motion, as lacking legal basis. Alternatively, the Citizen Accused moves for an order in limine modifying the speech code as aforementioned, and requiring any other euphemisms and feel-good terms as the Court finds appropriate.
 
As might be expected, the Captain Justice memorandum went viral. At his blog Hercules and the Umpire, senior U.S. District Judge Richard Kopf called the state's motion silly and defense counsel's response priceless. Joe Patrice at Above the Law praised Mr. Justice for writing "an epic response trolling the prosecutors for their ludicrous motion." Huffington Post called it "the greatest motion ever penned in the history of law."
 
Motions to Exclude Nazis and 9/11
 
Clearly, Mr. Justice lived up to his name. He deserves all the praise that was poured on him for his response to that motion. The regrettable truth, however, is that the frivolous use of in limine motions is not at all uncommon.
 
Take the motion to exclude references to Hitler and the Nazis. It was described in the case of Kaplan v. DaimlerChrysler, A.G., in which the 11th U.S. Circuit Court of Appeals considered whether a district judge erred in sanctioning a party for filing a series of unnecessary and frivolous in limine motions on the eve of trial.
 
Over the span of nine days leading up to trial, DaimlerChrysler filed 19 separate in limine motions. One asked the judge to exclude any references to "World War II, Adolph Hitler, the Nazis, slave labor, concentration camps, gas chambers, or any other inflammatory aspect of German history."
 
The only problem was that there was absolutely no reason to think that plaintiffs intended to make such references. Nothing in the case even hinted at it. So the judge deemed the motion frivolous and imposed sanctions on DaimlerChrysler, ordering it to pay a penalty equal to the amount of time its attorneys billed for preparing the motions.
 
On appeal, DaimlerChrysler got lucky. The 11th Circuit overturned the sanctions. The "Nazi" motion "may have been overkill," the circuit said, but it did not meet the legal standard for imposing sanctions.
 
Then there was the motion to exclude references to 9/11. It was one of 31 different in limine motions filed by plaintiff's counsel in the case of Bachie v. Wheeling Island Gaming, Inc. The motion asked the court to “preclude the defendant, his counsel and witnesses from. . .making any reference whatsoever, directly or indirectly, to the events or aftermath of September 11, 2001."
 
The judge thought this odd since 9/11 had no relation to the case and since there had been no indication that anyone planned to make reference to it. In fact, more than befuddled, the judge was downright angry over the onslaught of frivolous in limine motions. All of the motions, the judge said, "had little or no relevance to the facts of this case."
 
The judge's response was not surprising. He dismissed the plaintiff's lawsuit before it could even go to trial, citing the frivolous motions as key reasons. The dismissal was upheld by the Supreme Court of Appeals of West Virginia.
 
The lesson to be learned here is obvious: File not the frivolous in limine motion lest you be prepared to suffer the wrath of Captain Justice.
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Robert Ambrogi Esq

We are proud to partner with an author of Bob’s caliber to provide exclusive articles for our legal clients and leading industry experts. Robert J. Ambrogi is a news media veteran and the only person ever to hold the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is currently a Massachusetts lawyer who represents clients at the intersection of law, media and technology. He is also internationally known for his writing and blogging about the Internet and technology. Media and Technology Law Bob represents a range of businesses and individuals, concentrating in print and electronic media companies and the editorial, sales, marketing and technology professionals who work in them. He also counsels businesses and individuals in employment matters. Arbitration and Mediation An established professional in alternative dispute resolution, Bob has been an arbitrator since 1994, focusing on labor and employment and securities disputes. A mediator in a range of civil disputes, Bob completed the training required by Massachusetts law to protect confidentiality.

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