CRIMINAL & CIVIL CONSULTING

For various reasons, attorneys hire contract lawyers to research and write motions and supporting memoranda. Some attorneys conclude that other practice demands prevent them from investing the time necessary for proper research and writing. Others find that they simply do not enjoy such work (or are not particularly good at it), and conclude that hiring a contract lawyer allows them to submit top-quality submissions—without sacrificing profitability.

 

Brad Delapena works on a contract basis with criminal defense attorneys and civil attorneys who determine that a particular case or issue will benefit from rigorous, appellate-style briefing.

 

A criminal defense attorney may conclude, for example, that a particular prosecution violates jurisdictional or venue requirements; that a statute is invalid on Due Process, Equal Protection or First Amendment grounds; that a complex Fourth or Fifth Amendment issue merits special treatment; or that an expansive ruling should be sought under the Minnesota Constitution.

 

In such situations, Brad can help to more precisely frame the controlling legal issues. He can then research and write a camera-ready memorandum for submission to the district court and, if trial counsel wishes, argue the issues at the hearing. This service is particularly valuable when trial counsel believes that a pretrial issue may be either outcome determinative or critical to creating a strong posture for plea negotiations. Representative results on the criminal side include the following:

 

• Defendant was indicted on three counts of first-degree murder. The State, however, had improperly used defendant’s immunized testimony to obtain the indictment. Counsel hired Brad to write and argue a motion for a Kastigar hearing, at which the State would have to demonstrate for each piece of prospective trial evidence a source independent of defendant’s immunized testimony.  On the eve of the motion for Kastigar hearing, Counsel negotiated a guilty plea with a total prison sentence of 60 months.

• Defendant and brother were charged with second-degree murder, and the State moved for a joint trial.  Anticipating that defendant and brother would have conflicting defenses, counsel hired Brad to research and write a memorandum opposing the State’s joinder motion.  After reviewing the memorandum, the State withdrew its motion.

• Defendant pleaded guilty in federal court to mail fraud and illegal monetary transaction in connection with his part in a fraud scheme, and faced a presumptive guidelines sentence of 210 to 262 months in prison.  Counsel hired Brad to research and write a sentencing position paper seeking downward departures and variances.  Based in part on that memorandum, counsel obtained a 60-month sentence.

• Defendant was charged with numerous theft-related offenses in relation to a fraud perpetrated by his spouse through her closing company.  Counsel hired Brad to research and write a motion to dismiss all charges on the ground that there was insufficient evidence that defendant was involved in the charged offenses.  After the prosecutor reviewed the supporting memorandum, she dismissed all charges against defendant.

• A jury found defendant guilty of specified offenses.  Before sentencing, counsel learned that a juror had, during voir dire, concealed his friendship with the prosecutor.  Counsel hired Brad to research and write a motion for new trial based on jury misconduct.  After reviewing the supporting memorandum, the prosecutor agreed the verdicts must be set aside and dropped all charges against defendant without pursuing a retrial.

• Based on a fifteen-year-old out-of-state conviction for statutory rape of his then-girlfriend, defendant was charged in Minnesota with failure to register as a sex offender.  Defendant pleaded guilty and faced up to six months in jail. Counsel hired Brad to research and write sentencing memorandum. Based in part on that memorandum, counsel obtained a sentence involving no jail time.

 

Brad’s civil consulting ranges from motion practice to briefing cases for appeal. Civil practitioners contact Brad to write and research discovery-related motions, and to compose or respond to motions for summary judgment. Representative results on the civil side include the following:

 

• Plaintiff sued automobile manufacturer and driver of other car for damages sustained in automobile collision and roll-over. Following a split verdict and unusually low damage award, counsel learned that a juror had, on voir dire, concealed his status as a convicted felon, which disqualified him from jury service. Counsel hired Brad to research and write a motion for new trial based on jury misconduct. Following a hearing, the district court granted that motion.

• Plaintiff pursuing various claims related to improper construction of home notified defendants of remediation inspection, which some defendants did not attend. Those defendants moved for exclusion of evidence based on spoliation and all defendants moved for summary judgment. Brad researched and wrote memorandum in opposition to all defense motions and argued matter in district court. Court denied all defense motions.

• Numerous and varied cases successfully opposing motions for summary judgment.

References available.