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Military Justice’s New Blueprint

 

 

 
 
   
   
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(Credit: Facilities Management, Geospatial Engineering Services Archives, University of Virginia).

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In April 2019, we announced what we consider a watershed moment in military justice. We directed the redesign of our military justice support around the world. We believe this will dramatically improve the delivery of legal advice, command support, and trial expertise. Our predicate for this decision was our Pilot Program and the recommendations of the Board of Directors. As we enter the implementation phase, we want to highlight our expectations of you.

A Dynamic Practice

Our justice practice is dynamic. The court-martial practice of the ‘70s, ‘80s, and ‘90s is not the same as the court-martial practice of today—for many reasons.

We now practice using four versions of Article 120, Uniform Code of Military Justice, arguably the most progressive sexual assault statute in the world. That means our trial and defense counsel must master all four versions. This is, indeed, rocket science.

In 2007, sexual assault cases made up 18% of our practice. Today, 50% of our trials include a charge involving a sexual assault. Motions practice is lengthy. There are far more contested cases, which means counsel spend more time in the “crucible of the trial well” and expert witnesses are utilized more than ever before. We continue to average double digit homicide trials every year, and of course there is always the potential for capital litigation.

Trial counsel are more integrated into their formations than ever before. All of you have set an incredibly high standard—providing premier legal advice, not only “on demand,” but also anticipating where your advice may be helpful to your commanders. Counsel are available 24/7, thanks to cell phones, VPNs, and Technology Next (all designed, of course, to make our lives simpler and more productive).

And, at the same time, there are other serious court-martial cases—cases that affect readiness and lethality—waiting in the wings. The age-old maxim of “touch every case, every day” is more difficult to follow when commanders are calling and a trial counsel has to decide whether to answer the phone or continue preparing a cross-examination for the next day’s court-martial.

The truth is that both the commander’s call and trial preparation are vital parts of our practice. While we recognize that we have talented, motivated, determined counsel out there who can successfully triage and prioritize, the question remains . . . is that the best way to practice? We believe the answer is a resounding “no.” As such, we have decided to redesign our military justice practice.

This redesign is actually quite simple. Dedicated, untethered trial teams support our formations, generating expertise from investigations to findings. Dedicated military justice advisors provide comprehensive, expert service in everything else—from chapters, to boards, to nonjudicial punishment, to a General Officer Memorandum of Reprimand. The trial counsel will focus solely on litigating cases while the military justice advisor will provide legal advice to commanders and practice before separation boards. Splitting these functions between two attorneys will allow for greater expertise—both in litigation and in command advice—over time.

Developing Expertise

The focus of the redesign is to develop expert litigators and expert command legal advisors across ranks. Our litigators are among the best in the world, but as we have said before, you don’t have to be sick to get better. This, again, is about improving. We should all seek to improve every day—it’s a fundamental part of readiness, Soldiering, and the practice of law. This redesign gives counsel the bandwidth to do just that.

We are also mindful of our amazing Trial Defense Service (TDS) attorneys who work hard every day to represent their clients. We have begun hiring defense investigators to allow counsel an opportunity to free up time to focus on litigation. We have also said, time and again to staff judge advocates and to commanders, they must resource TDS. That is our going-in expectation—one that we will continually emphasize and monitor as we travel for Article 6 inspections.

A blueprint of a gavel with a retractable handle, submitted to the U.S. Patent Office in 1956.

The Advocacy Center

For all litigators, in all of our core practice areas—from labor, to environmental, to contracts to criminal, to torts, to civilian and military personnel litigation—we are standing up the Advocacy Center this summer. The Advocacy Center will synchronize, develop, integrate, and execute training designed to improve the litigation function and advocacy across our broad litigation spectrum.

We have some of the best training in the world—thus far, it did not effectively cross-pollinate. It has been stove-piped, for example, within the criminal law practice, or the federal litigation practice. The Advocacy Center will leverage the goodness from all of the training we do, including at our Legal Center and School, and integrate so our criminal law practitioners, for example, benefit from deposition training that our litigation division might conduct. The Advocacy Center will also enable the Personnel Plans and Training Office and our litigation professionals to look seamlessly across our Corps and see that, for example, a senior defense counsel should be assigned next as a team chief at Litigation Division—because the skill sets are the same. At present, our thinking and planning are far too compartmentalized, but the Advocacy Center will push us beyond our stovepipes to a broader utilization of attorneys and training venues in the pursuit of litigation expertise and excellence.

The Way It Has Always Been Done

Last year at this time, we were in the midst of our final push to ensure our Corps was trained on the Military Justice Act of 2016. Our extraordinary Military Training Team, led by the incomparable Colonel Sarah Root, did a phenomenal job of making certain we had the training and tools needed as a Corps to Be Ready for a historic shift in our practice. All of you, the members of our Regiment, rose to the challenge—deftly absorbing the most significant changes made to the Uniform Code of Military Justice in decades. In just a few short years from now, new members of our team will think “this is just the way it has always been done.”

And so it will be with the military justice redesign. Each of you undoubtedly see the potential challenges in its implementation, but we are confident that you will also see the opportunities and will diligently and committedly work through the friction.

An “Army in Renaissance” means our formations, our weapons of war, and our warfighting doctrine are changing—as we become, once again, an Army that fights as divisions and corps. While the brigade remains the centerpiece, we recognize the pressures of resourcing legal assets at both brigade and division. The redesign is deliberately focused on addressing these many features of the present and future Army.

Change is hard. It will take time, conversations, and drumbeat persistence over many months. Not only internally, but with our clients—at all echelons. We’re not the best law firm in the world merely by coincidence. We’re the best because of each of you and the leadership, vision, and energy you continue to demonstrate. Now that the decision on the military justice redesign has been made, it is time to “saddle up and move out.”

We have every confidence you will make the difference—as you do every single day.

Now, get after it.

Be Ready! TAL