Confession of error ~ is a voluntary confession on behalf of the prosecution in a nutshell

Error coram nobis
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A writ of error coram nobis is a writ which is used to inform a court (usually an appeals court) of facts not on the record despite due diligence by the party filing the writ (the petitioner). It is usually considered extraordinary in nature. The state of Arkansas Supreme Court has explained how such a writ is allowed:

* A writ of error coram nobis is an extraordinarily rare remedy, known more for its denial than its approval.
* The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature.
* The only reasons for issuing such a writ (in the case of Criminal Appeals) is "in one of four categories: (1) insanity at the time of trial; (2) a coerced guilty plea; (3) material evidence withheld by the prosecutor; or (4) a third-party confession to the crime that occurs during the time between conviction and appeal."
* Coram nobis proceedings are attended by a strong presumption that the original judgment was valid.
* Although there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief; in the absence of a valid excuse for delay, the petition will be denied.
* With regard to seeking a writ of error coram nobis, due diligence requires that (1) the defendant be unaware of the fact at the time of trial; (2) he could not, in the exercise of due diligence, have presented the fact at trial; or (3) upon discovering the fact, he did not delay bringing the petition.
* The supreme court does not lightly overrule cases and applies a strong presumption in favor of the validity of prior decisions; as a matter of public policy, it is necessary to uphold prior decisions unless a great injury or injustice would result.
* A mere claim of newly discovered evidence in itself is not a basis for relief under coram nobis; the petitioner must show that a fundamental error occurred, such that the facts as alleged as grounds for its issuance are such that there is a reasonable probability that the judgment of conviction would not have been rendered or would have been prevented had the exculpatory evidence been disclosed at trial, not that the newly discovered evidence might have produced a different result had it been known to judge and jury.
* It is the petitioner's burden to show that a writ of error coram nobis was warranted; the supreme court would not undertake to reinvest jurisdiction in the trial court just for the purpose of allowing petitioner to conduct a "fishing expedition."

Echols v. Arkansas, 125 S.W.3d 153

thanks rod........you are awesome

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Drafting Motions for Novices & Laypersons

by

Rod Borlase, JD, MLS (RBC HomePage)

For permission to use.
Copyright 2000 Rod Borlase

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Law students, neophyte lawyers, and lay-litigants sooner or later need to draft a pleading and, more often, motions to file with courts. It is often confusing to them and, unfortunately but understandably, there is less help available for them than one might expect. To be sure, there are "form books," but a slavish reliance on form books - what I prefer to call "sample books" - is a quick way to get one's case, and perhaps one's self, in trouble before the court. Every case differs, and those differences must be reflected in one's pleadings and motions, and no book of samples adequately reflects such diversity.

"Pleading & Motion Practice" is a sub-art and specialized craft of the lawyer's general art and craft. Many law firms hire persons just for this expertise. You can find a very interesting discussion of pleading practice in American Jurisprudence Trials: "Tactics and Strategy of Pleading" 3 Am. Jur. Trials 681.

Having now underscored pleading and motion practice's importance, I need to differentiate between what is really important and what is not: The Substance is important - Form is much less important! Most people I encounter have that turned around - They think they know what the pleading or motion must say, but have little idea what it should look like. Well, although form has its place, substance is the main thing.

What Is a Pleading, & What Is Its Purpose?

While the word pleading is often used to denote both pleadings and motions, they are different at a more fundamental level. Pleadings have to do with initiating or responding to a lawsuit as a whole, often called a "Complaint," "Claim" or "Petition," and requiring an "Answer" or "Response." The exact terminology is determined by the jurisdiction - e.g., Texas, Arizona, or federal versus state courts - or sometimes by the statute under which one's claim is brought. Pleadings are filed with the court and then officially "served" upon the "Defendant" or "Respondent," and he or she must "Answer" or
"Respond."

It is this formality of "service" that brings the parties together before the court and under its authority. After that, the formalities of service, for motions particularly, are much easier and less formal. Serving motions is generally as easy as filing the motion with the court, along with a "Certification of Service" tacked on to the end, promising that a true and complete copy was mailed to all other parties, and then doing so. With that, the burden of showing that the motion was not received shifts to the party claiming they did not get it.

There are other pleadings too, i.e., that impact the entire suit and the parties before the court, such as "Intervenors" - people who have some stake in your lawsuit - and "Third-Party Joinder" - someone that a current party believes has responsibility within your suit - and "Special Appearances" - where one of the parties served may believe they have nothing to do with your suit or that the court has noauthority to bring them into it.

The key thing about pleadings is that they affect the whole of the suit, serve notice upon all parties that they are involved in a lawsuit, and what that suit is about, and assemble all parties before the court at a certain time and make them all subject to that court's authority. Although there may be some motions during the pleading process, most motions arise after the suit is established and the active litigation process begins. Motions during the pleading process remain awkward and expensive "service" problems, akin to basic pleadings.

What Is a Motion, & What Is Its Purpose?

Motions occur mostly after the lawsuit is established, and concern the lawsuit's conduct. Motions can be about virtually anything that litigants are entitled to and may be brought by any party to the suit. For instance, if a criminal defendant believes some evidence was illegally secured by the police, he may file with the court a Motion to Suppress Evidence. Sometimes an opponent will refuse to disclose information that the law requires or to which you are entitled, and you must file with the court a Discovery Motion or Motion to Compel Discovery, accompanied perhaps with a Motion for Sanctions. If there is some question whether certain evidence will be material and relevant to the purpose for which it may be introduced, especially if the evidence is highly prejudicial, then the attorney may file with the court a Motion in Limine, seeking the court's protection from the opponent's exhibiting such evidence to the jury before the court has officially ruled on its admissibility.

The number of possible motions in a given case is almost infinite, but generally should be used sparingly. Like "objections," if used to excess, both judges and juries get irritated, and one may easily find oneself winning the battles, but losing the war. File motions that matter, i.e., that have some palpable prospect of affecting the trial's outcome, and avoid other motions. When confronted by vexatious opponents who file trivial motion after trivial motion, my approach was usually to raise only token resistance, pointing out to the court that this or that motion has only marginal bearing, if any, on the suit and simply imposes upon the court's good nature and the jury's time and convenience. There comes a point, however, where "rambo tactics" become truly obstructive and vexatious, and the court may sanction the party, his lawyer, or both, and a motion requesting that may be appropriate.

Motions are different.

For most of this essay, I will be discussing motions, less pleadings. Note that difference.

Layout or Format:

Too much fretting is put into layout - There's nothing holy about it. It is simply a functional style, just like you would use in a business letter, date at the top, followed by addressee, followed by subject matter line, followed by salutation, followed by the letter's substance or body, followed by closing and ending with a signature and return address, etc.

It's that simple except, with pleadings and motions, the functional style is modified slightly to supply information needed to keep all the correspondence in the proper file. For instance, you need first to provide the Cause Number (top, centered), followed by the Style - which is composed of the Parties (left of center) and the Jurisdictional Court (right of center) - followed by the motions general-purpose Caption (centered caps underlined), followed by the Court Salutation (caps left), followed by the Body - this part needs more elaboration (below) - followed by the Prayer, precisely listing what you're
asking the court to do or Order, followed by the closing, signature and address of Movant, followed by the Certification of Service.

That's the basic layout of a motion and, with some small modifications, the layout of a pleading too, an Original Petition or Original Answer, etc. There's nothing terribly holy about this stuff, except that you want all this information in the correct order and place so that the court and all the parties can readily find and identify the information they need when and as they need it.

One of the easiest ways to get the format is to steal it! Every pleading or motion starts with the Cause Number and Style - If you become involved in a lawsuit, papers will be served on you, and they will have the Cause Number and Style on them. Steal that information and get on to the important part! Don't make this harder than it is, and concentrate on getting the Body and Prayer right. That's the part that counts.

Body & Prayer:

Body - A motion's body begins after the Caption, centered, for instance:

PLAINTIFF'S MOTION FOR COURT-ORDERED MEDIATION

and the Salutation to the Court, set fully to the left:

TO THE HONORABLE JUDGE OF SAID COURT:

The Body's first element is the Opening Paragraph, an important, perhaps the most important paragraph in the motion's body. In this paragraph, the movant puts the "who, what, when, why, where, and how" of the entire motion in one clear, carefully drafted, clear, properly structured, clear, complete, clear, accurate, and clear sentence.

Although some contemporary draftspersons disagree, I believe this paragraph should follow custom, beginning with the customary COMES NOW..., followed by the movant's name (i.e., name of party filing the motion) and role in the proceedings, followed by legal counsel's name or, if unrepresented, "pro se," followed by the motion's legal authority, and then precisely/concisely what the motion is about, and then the "tender" of what will be shown at the hearing to support and justify the motion.

For example, here's a simple sample of an Opening Paragraph for a motion asking the court to order
the parties to non-binding mediation:

PLAINTIFF'S MOTION FOR COURT-ORDERED MEDIATION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Jonathan C. Witherspoon, Plaintiff in the above-styled and numbered
Cause, and Movant herein, by his attorney Phillip N. Windflur, pursuant to Chapter 154 of the
Texas Civil Practice & Remedies Code and this Court's Local Rules, and respectfully moves
this Honorable Court to Order this Cause's Parties to non-binding Mediation within thirty (30)
calendar days from Hearing hereon, and for grounds therefor would respectfully show unto this

Honorable Court as follows:

[ After this, the Body contains necessary averments and showing
of required elements to support Movant's request, each in separate
paragraphs, each set off by Roman numerals, I, II, III, IV, V .... ]

There are some very good practitioners who strongly disagree with my style's formal tone and older, more traditional fashion. I disagree with them, but the reasons go well beyond this treatment. If you agree with them and not with me, you may omit the flourishes, the "Honorable Courts" and "respectfully," the "hereins" and "therefors," and amend the syntax accordingly. Remember: We're not tampering here with holy words!

Body continued - Your motion's elements or required "showings" -

Your motion must accomplish two things before the court will hear it, and you must aver them to the court in your motion: 1) That the law allows the court to grant you the requested relief and 2) generally what facts or circumstances about your case or situation justify the requested relief. You must list this in the body, each element in its own paragraph, each paragraph separated by Roman numerals.

Note, however, you are not putting complete arguments or any evidence in the motion - Save that for the Hearing before the court, when everyone is present to state their full point of view. In the motion, what you intend to show or prove should suffice.

Continuing with the Mediation Motion example:

I.

Chapter 154 of the Texas Practice & Remedies Code expresses the Texas Legislature's
policy and intent that voluntary resolution of contested matters be encouraged (§ 154.002)
and, more specifically, provides for "Referral of Pending Disputes for Alternative Dispute
Resolution Procedures" at § 154.021; and further,

II.

Movant would show, the contested issues being partition of partnership assets and
liabilities, not liability for partnership dissolution, the Parties are best situated to accomplish fair
and equitable voluntary division under facilitated negotiation, namely Mediation; and further,

III.

Movant would show, the economies of the Justice System and of this Honorable Court,
and of the Parties' current and future respective costs and interests, indicate that the Texas
Legislature's stated policies and intents should be applied in this matter; wherefore, premises
considered, ...

[ This is the end of the motion's Body, which leads directly in the
Prayer that follows (below). ]

Prayer - Exactly, step-by-step, in sequence, what do you want the court to do? Exactly! Remember: The court is not permitted to grant any relief that was not requested in the motion. Themovant must request exactly what he or she wants. Toward the end of this segment, I will provide a "catch-all" provision that may help cure omissions and oversights, but the key is to do it right - Ask precisely for the exact relief you need!

Notice that the Prayer is a list of actions the movant is requesting that the court take, and every item begins (in the independent clause at least) with an action verb: Grant ... Set ... Order ... etc.

Continuing with our Mediation Motion example:

PRAYER

Movant hereby prays that this Honorable Court:

1) Grant Movant's instant Plaintiff's Motion for Court-Ordered Mediation; and

2) Order the Parties to voluntary Mediation within thirty (30) calendar days of this
Honorable Court's Order to Mediation, or within such reasonable time thereafter as
may be practical and as the Parties may mutually agree and file with this Honorable
Court; or, alternatively,

3) Should Objection to movant's instant motion be timely filed, Set a time, date and
place for Hearing upon this motion; and

4) Grant such other or additional relief to which movant may be justly entitled at law
or in equity.

Respectfully submitted,
etc.

Notice that last item in the Prayer, item number 4. That is the "catch-all" provision that may enable a court to grant relief that was not properly requested or adequately supported in the motion itself. One should simply never file a pleading or motion without this last element. If one doesn't need it, no harm has been done - But, if one does need it, there is no substitute for it. Without it, the court's hands are tied. It cannot offer relief that was not requested.

Certification of Service:

As noted earlier, pleadings that institute suit and bring parties under the court's jurisdiction and authority must ordinarily be served upon each party by an officer of the court, a constable, sheriff or some such. After the suit is established and the parties know they must comply with the court's rules and orders, the process of exchanging information generally becomes less complex and certainly less expensive.

Motions are generally served in the following fashion: At the end of the motion, a "Certification of Service" is appended, assuring the court that a "true and correct copy" of the motion was mailed, postage pre-paid, through the United States Postal Service to each party at its official addressestablished with the court during the pleading and answering process.

CERTIFICATION OF SERVICE

I, the undersigned movant in the above and foregoing Plaintiff's Motion for
Court-Ordered Mediation, hereby certify that a true and correct copy of said
Motion was this date deposited with the United States Postal Service, postage
pre-paid and properly addressed to each Party in the above-styled and
numbered Cause.

___________________________________________
Movant's Signature & Date of Mailing

In some instances, it may be convenient for one party to simply hand the motion to opposing parties or their counsel of record. If that's the case, be sure you tell the truth - It is after all your sworn word to the court, and the last thing you want is for the court to doubt your truthfulness:

CERTIFICATION OF SERVICE

I, ..., hereby certify that a true and correct copy of said Motion was this date
personally handed to each Party in the above-styled and numbered Cause.
____________________________________________
Movant's Signature & Date of Delivery

Put together, the motion looks something like this:

Cause Number 9-1234567

___________________________________________________________________

§
Jonathan C. Witherspoon, § IN THE CIVIL DISTRICT COURT,
Plaintiff §
§
§ OF HARRIS COUNTY, TEXAS
versus §
§ ______________________
§
Geofferey L. Witherspoon, § 209^TH JUDICIAL DISTRICT
Defendant §
___________________________________________________________________

PLAINTIFF'S MOTION FOR COURT-ORDERED MEDIATION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Jonathan C. Witherspoon, Plaintiff in the above-styled and numbered
Cause, and Movant herein, by his attorney Phillip N. Windflur, pursuant to Chapter 154 of
the Texas Civil Practice & Remedies Code and this Court's Local Rules, and respectfully
moves this Honorable Court to Order this Cause's Parties to non-binding Mediation within
thirty (30) calendar days from Hearing hereon, and for grounds therefor would respectfully
show unto this Honorable Court as follows:

I.

Chapter 154 of the Texas Practice & Remedies Code expresses the Texas Legislature's
policy and intent that voluntary resolution of contested matters be encouraged (§ 154.002)
and, more specifically, provides for "Referral of Pending Disputes for Alternative
Dispute Resolution Procedures" at § 154.021; and further,

II.

Movant would show, the contested issues being partition of partnership assets and liabilities,
not liability for partnership dissolution, the Parties are best situated to accomplish fair and
equitable voluntary division under facilitated negotiation, namely Mediation; and further,

III.

Movant would show, the economies of the Justice System and of this Honorable Court, and
of the Parties' current and future respective costs and interests, indicate that the Texas
Legislature's stated policies and intents should be applied in this matter; wherefore,
premises considered,

PRAYER

Movant hereby prays that this Honorable Court:

1) Grant Movant's instant Plaintiff's Motion for Court-Ordered Mediation; and

2) Order the Parties to voluntary Mediation within thirty (30) calendar days of this Honorable
Court's Order to Mediation, or within such reasonable time thereafter as may be practical
and as the Parties may mutually agree and file with this Honorable Court; or, alternatively,

3) Should Objection to movant's instant motion be timely filed, Set a time, date and place for
Hearing upon this motion; and

4) Grant such other or additional relief to which movant may be justly entitled at law or in equity.

Respectfully submitted,

s/ . . .

Phillip N. Windflur, Esq.
( TBCN 1234567)
Attorney for Plaintiff
The Gables Suites, Suite 100
123 North Main Street
Houston, Texas 77002
(713) 123-4567
fax (713) 123-4568
beep (281) 234-5678
pnw@yahoo.com

CERTIFICATION OF SERVICE

I, the undersigned movant in the above and foregoing Plaintiff's Motion for Court-Ordered
Mediation, hereby certify that a true and correct copy of said Motion was this date deposited
with the United States Postal Service, postage pre-paid and properly addressed to each Party
in the above-styled and numbered Cause.

____________________________________________
Movant's Signature & Date of Mailing

The same motion less formally put:

PLAINTIFF'S MOTION FOR COURT-ORDERED MEDIATION

TO THE HONORABLE JUDGE OF SAID COURT:

Jonathan C. Witherspoon, Plaintiff and Movant in this Cause, by his attorney
Phillip N. Windflur, pursuant to Chapter 154 of the Texas Civil Practice & Remedies Code
and this Court's Local Rules, moves the Court to Order the Parties to non-binding Mediation
within thirty (30) calendar days from Hearing hereon, and for grounds would show the Court
as follows:

I.

Chapter 154 of the Texas Practice & Remedies Code expresses the Texas Legislature's
policy and intent that voluntary resolution of contested matters be encouraged (§ 154.002) and,
more specifically, provides for "Referral of Pending Disputes for Alternative Dispute Resolution
Procedures" at § 154.021; and further,

II.

The contested issues being partition of partnership assets and liabilities, not liability for
partnership dissolution, the Parties are best situated to accomplish fair and equitable voluntary
division under facilitated negotiation, namely Mediation; and further,

III.

The economies of the Justice System and of this Court, and of the Parties' current and future
respective costs and interests, indicate that the Texas Legislature's stated policies and intents should
be applied in this matter; accordingly,

PRAYER

Movant prays that this Court:

1) Grant Movant's Plaintiff's Motion for Court-Ordered Mediation; and

2) Order the Parties to Mediation within thirty (30) calendar days of this Court's Order to Mediation,
or within such reasonable time as may be practical and as the Parties may mutually agree and file
with the Court; or, alternatively,

3) Should Objection to this motion be timely filed, Set a time, date and place for Hearing of this
motion; and

4) Grant such other or additional relief to which movant may be justly entitled at law or in equity.

Respectfully submitted,

etc.

CERTIFICATION OF SERVICE

I, the undersigned movant in the foregoing Plaintiff's Motion for Court-Ordered Mediation,
certify that a true copy of this Motion was deposited this date with the United States Postal Service,
postage pre-paid and properly addressed to each Party in this Cause.

____________________________________________
Movant's Signature & Date of Mailing