What should I consider when selecting the right military defense attorney for me?
Experience is a primary factor to consider when selecting any attorney – especially a military defense attorney. It is very easy for an attorney to create a website and assert themselves as a military lawyer. It is prudent for any potential client to consider whether the military defense attorney they are considering has experience prosecuting and defending courts-martial. Additional experience may be in the form of having served as an investigating officer in an Article 32, Uniform Code of Military Justice, investigation or as a legal advisor for an administrative separation proceeding. Other experiences that may set one military defense attorney apart from others is experience serving as an advisor to military commanders, supervising and mentoring junior attorneys as a leader on a military legal staff, and teaching military justice. Mr. Berens has experience as a military prosecutor (trial counsel), defense counsel, military justice instructor, senior defense counsel, deputy staff judge advocate, and staff judge advocate. Mr. Berens has also deployed as a Judge Advocate to Iraq and Afghanistan. These are experiences few other civilian or military defense attorneys can match.
Another factor to consider is location. It may appear that the military defense attorney you are considering hiring operates from a specific location, but that may be far from the case. A non-local military defense attorney may be more difficult to reach and impossible to meet face-to-face until well after you have paid some form of non-refundable retainer. Mr. Berens primarily defends service members in the Puget Sound Region and Washington State. Mr. Berens’ regional focus gives military clients the ability to meet Mr. Berens before representation begins and fosters greater communication during representation.
Other factors to consider are value and quality of representation. Mr. Berens has many years of experience providing quality legal representation to his clients. Read some of the Client Reviews to learn more.
Should I hire a civilian military defense counsel?
Many active duty Judge Advocates filling defense counsel billets are highly qualified. Some are more effective than others. One primary factor that often limits the detailed military defense counsel’s ability to defend service members is workload. An attorney with too many competing interests to give your case the attention that it deserves may not be right for you. Another factor that may limit the detailed military defense counsel’s ability to defend service members is lack of experience.
A law review article in the Military Law Review (Volume 220 Summer 2014) written by MAJ Jeffrey A. Gilberg titled “The Secret to Military Justice Success: Maximizing Experience” addresses this very issue. The law review article can be found here. In the article, MAJ Gilberg “identifies and substantiates the problem of inexperience in the Army’s military justice system.” (p.3) Early on in the article, MAJ Gilberg describes the lack of litigation experience amongst Army JAGs as a decades-old problem and cites the recurring interest in this dilemma by senior leaders in the Army JAG Corps. (p. 4-5) The Army is not alone in the endeavor to raise the bar in the court-martial litigation arena. In my experience, the Air Force has demonstrated similar interest. Most notably in the relatively recent change in the manner in which junior counsel are certified to practice under Article 27(b)(2) of the UCMJ. For many years, junior Air Force JAGs were nearly automatically certified upon completion of the Judge Advocate Staff Officer Course. Today, junior JAGs are expected to pass muster in approximately three courts and receive a recommendation for certification by one or more military judges and the JAG’s Staff Judge Advocate.
MAJ Gilberg polled a number of participants in the court-martial process to support his conclusions and recognition of the “need to improve the experience of counsel for both sides.” (p.5) Participants include trial counsel, defense counsel, military judges, chiefs of justice and court reporters. Some of the reasons behind the lack of experience amongst junior counsel most certainly relates to the increase in operations overseas and the decrease in the overall number of courts-martial over time. (p. 6) The article is replete with examples supporting the conclusion that many trial and defense counsel lack litigation experience. Some of the numbers cited by MAJ Gilberg come from past similar studies by Army colleagues. (p.8) One aspect of the article that is quite alarming is MAJ Gilberg’s analysis of a previous survey suggesting the lack of experience on the defense bar may be comparable to that of the trial counsel (prosecution) bar. (p.8) MAJ Gilberg notes the small sample size associated with the previous survey and appears to have countered that deficiency with a more thorough poll to support his conclusions. One of which is that few junior JAGs have much litigation experience and the numbers for cases before panels are rather low overall. (p.10) MAJ Gilberg’s conclusions on the defense bar are more troubling: “Despite the average DC possessing more than double the experience of the average TC, the numbers remain below the level of experience an accused should be provided.” (p.11) As MAJ Gilberg states, “This is unfair to the Soldier accused of a crime as well as to the government, which deserves justice and accountability.” (p.12)
The first question a service member must decide upon when facing a court-martial or adverse administrative action is who will represent him or her. The stakes are often high, with the potential for life-long consequences. Be sure you have the right advocate on your side.