January 31, 2012 § 2 Comments
January 27, 2012 § 2 Comments
Potential Client: When I found your website, I knew that god had led me to you, Mr. Esquire.
My Evil Thought: Well, I hope he told you about my minimum retainer.
Yes, I know where I’m going when I die. No need to rub it in.
Note: Yes, they really did call me “Mr. Esquire.”
January 25, 2012 Comments Off
This was on CNN today:
U.S. special forces swooped into Somalia in a pair of helicopters in a daring overnight raid to rescue two kidnapped aid workers — an American and a Dane — and killed several gunmen, American officials said Wednesday.
The hostages, Jessica Buchanan and Poul Thisted, were seized in October after they visited humanitarian projects in northern Somalia, said the Danish Refugee Council, the agency for which they worked.
Both are unharmed, the aid group said.
While SEALs received top-billing, it appears that the overall Special Operations team was mixed from around the services.
To all of them: Fantastic job, and thank you.
This team risked their lives and saved the lives of two people who, by accounts I read, dedicated themselves to trying to help those around the world who are less fortunate than most of us here in the choice parts of the Western Hemisphere.
We often focus on our Armed Forces in war, combat operations, and the politics behind their use.
Yet, one of the highlights of my career was deploying in support of Stabilization Force 6 (SFOR6) in Bosnia-Herzegovina. We weren’t there to kill or conquer. Instead, we facilitated the building of schools, hospitals, and housing. We destroyed the weapons of war by crushing them with tanks (oh, the irony) or blowing them up in the middle of empty field. We removed thousands and thousands of landmines from farm-fields. We helped the nations of that area to heal and move forward from a truly disgusting war.
I loved my 7 months in Bosnia. I even asked to stay longer, but it was my time to leave. In that short time, I felt good about everything we did.
For that reason, I appreciate what the Special Forces Team has done. While I wish they could have accomplished their mission without loss of life (for anyone), it happened, and apparently out of necessity.
I hope that, in the end, they can look back at what they have done (and probably countless other unpublicized good acts), and feel the same way I do about Bosnia. They did what they had to do, they made a difference in the lives of good people, and they did all of this extraordinarily well.
January 23, 2012 § 4 Comments
So, I gets this call from another lawyer. It went something like this:
Other Lawyer (OL): Hi, this is _______ from _____, __. I’m an experienced litigator out here, and I have a client here who has a military law case.
Me: OK, great, I do military law cases.
OL: I know. I found you on the internet. So, what I need is for you to tell me how to proceed with his case, because I want to make sure I do it right. You see (rambling and overly-detailed description of case in which she shows that she clearly is not spotting the issues that need to be spotted).
Me: Ummmm, so, are you looking to refer this case to me or…
OL: Maybe, but right now I just need you to tell me everything I need to do to get this thing going.
Me: OK……..well, I really couldn’t tell you exactly what to do because I’d need to know a lot of specifics about his case, and we’d be on the phone for hours…
OL: No problem, we’ll send you all the paperwork, and you can look through it and tell me what else I need to know.
Me: Ummmm, OK, well, my retainer to take a case is…
OL: Oh, my client isn’t looking to retain another lawyer. I just need you to review his military paperwork and tell me everything I need to do. I may need to have you join a teleconference with my client. We may retain you to come onto the case if it goes to hearing.
I politely excused myself from the conversation by saying something about being late in applying my cat’s hemorrhoid creme.
Now, just so you know that I’m not a hard-hearted man, I do help other counsel with military cases. Why, just the other day, I spent almost an hour helping a friend to lay-out a motion in one of his upcoming courts-martial. Of course, he is a friend, and someone with whom I’ve collaborated and helped before. I even help those I don’t know well when they call and have very specific and tightly-framed questions.
I didn’t know her, and it seemed a bit presumptuous to assume that I would devote several hours of my time to her case for no pay. To me, it seemed both rude and professionally disingenuous.
So, where, as lawyers, do we draw the line between collegiality and freeloading?
One thing my edited dialogue did not show was that OL repeatedly told me that she is an “experienced litigator.” It seemed to be a nervous tick. She mentioned it approximately 10 times in the first two minutes of discussion. When someone repeats this during a conversation, I assume one thing: they’ve never tried a jury case. Ever.
Perhaps, when she does score a jury trial, she’ll find someone to walk her through the entire process, for free.
January 18, 2012 Comments Off
You know what I like about the internet? You can find just about anything. And, by anything, I mean anything. I like that. Well, OK, some of the “anything” I mentioned is a bit distasteful to me, but I still like the fact that oodles of information is available to us–from kittens (lots of freaking kittens) to……well……not kittens.
What can SOPA do? Well, this site (Your favorite blog in the whole world. Admit it, it is.) could be shut down if someone in the Justice Department (god, I hate the word “justice”) believes that I might be linking to a site that has some suspected copyrighted material. That sounds just peachy.
The law is over broad and unnecessary–the two hallmarks of horrible lawmaking. It caters to the RIAA and their ilk. Last time I checked, they’re still sporting plenty of bling. They just want more.
SOPA is the internet equivalent of having a law that allows for roads and highways to be shut down on a whim in the event that someone in the government believes that illegal goods might be transported upon them. If your driveway connects to one of these closed roads, well, sorry. It’s closed, too. This, of course, is a decision that can be made by our favorite non-elected government officials.
I ask three things:
- Educate yourself about SOPA and it’s ugly sibling, PIPA.
- Click on the little ribbon in the upper right portion of this website (the one that says “STOP CENSORSHIP”).
- Use the form provided to write your representative and tell them what you think of SOPA and PIPA.
Tell Congress to go back to working on stuff that needs their attention.
January 17, 2012 Comments Off
If you asked me to show you a picture of a Texas football coach, I’d find a picture of Bum Phillips. That’s just my own stereotype–cowboy hat, barrel chest, cinderblock jaw.
As coach of the Houston Oilers, he wasn’t as successful as his NFC counterpart near the north-end of the state. Mostly, he just looked and acted the part and never worried about what others thought, and that’s fine with me.
He said the following about Don Shula:
“He can take his’n and beat your’n and take your’n and beat his’n.”
Remember that. I’ll come back to it.
In the military, the process of devising missions and planning operations is called the Military Decision Making Process (MDMP). It is a rigid, highly-detailed, multidisciplinary process that allows commanders to make informed decisions.
One of the most important aspects of MDMP is something called G2, or the intelligence piece. G2 refers generally to the collective group of staff officers tasked with analyzing the enemy, estimating their likely course of action, and determining their capabilities. Without this key part of mission analysis, an operation would be nothing more than a stab in the dark.
Their importance is simple. Until you know what your enemy can/will do, you’ve got no business planning anything.
A quick look in the phonebook or Google search will show you that many, many criminal defense attorneys tout themselves as “former prosecutors.”
I can see advantages to having experience as a prosecutor (having formerly prosecuted cases myself). However, most of those who tout the “former prosecutor” tag do it to imply that they have an “in” with the local prosecutors and can work a sweet deal. While this may be true, would you also advertise “Drinking buddies with the chief prosecutor” or “Plays golf weekly with two criminal court judges” or “Coaches a little league team that features 2 prosecutorial spawn” or “Sees senior deputy prosecutor in communal shower at country club, daily!” No. Well, if you wouldn’t say those things, why the hell would you imply them?
Really, they all miss the point.
Being a former prosecutor can be helpful if you use that knowledge to enhance your ability to perform a good “G2″ analysis. Since you’ve worked as a prosecutor, you presumably know how prosecutors think, and you can plan for what they might, can, and will do. That’s great. Is it necessary? No. Can you figure it out if you’ve never been a prosecutor. Sure. Just as you can be a fantastic trial attorney without some fancy schmancy “Certified Trial Attorney” badge, you can excel as a criminal defense attorney without having been a prosecutor.
Just because it is helpful does not mean it is necessary. You just need to develop the skill without the firsthand knowledge–just as some highly successful football coaches never played ball in college and beyond.
So, how does this all tie-together?
If you want to be competent (and subsequently successful), you must analyze what your “enemy” is going to do. Unfortunately (and surprisingly to me), I get a lot of resistance to this.
Even experienced litigators tell me to forget about opposing counsel and just focus on my case. They tell me to only focus on what I can do, not what others might/will do. Often, these lawyers are highly experienced and successful.
I can’t agree with them, and I doubt I’ll ever see it from their perspective. Frankly, I think they consider opposing counsel, but they don’t notice that they are doing it.
Our trial prep always includes an analysis of opposing party capabilities. We draw charts and create tables to show what they can, might, and will do. It takes hours.
At the end, we completely rehearse the trial, from the smallest beginning minutiae to the end of argument.
For the opposing party, we use their “Most Dangerous Course of Action.” That is, we determine what they could do to thoroughly whip our ass and rehearse as though they try that perfect case. For all else, we develop contingency plans to account for things that might happen during trial. It is frustrating, and often a humbling reality-check on a case we’ve fallen-in-love-with. Some lawyers can’t stomach the self-deprecation that must occur. For me, it’s just part of the process.
Of course, once we enter the courtroom, everything descends into chaos. C’est la vie.
Many will argue with me about the value of a solid G2 analysis, but I will always believe it essential. I’d rather have a good plan that goes to hell than have no plan at all.
It never gets discussed on ESPN, but I believe that neither defense nor offense wins championships in sports. Instead, good scout teams–those unsung working-class guys who learn the opponents’ tactics and throw them at the starters from Monday through Friday–win championships. Without them, those starters, with their fancy game plans, are merely stabbing in the dark.
So, to paraphrase Bum:
Before you can beat his’n with your’n, you must learn how to beat your’n with his’n.
January 14, 2012 § 8 Comments
Within the last two days, a video went viral of Marines urinating on the bodies of alleged Taliban fighters. Presumably, the Marines had recently completed a firefight, and the bodies are those of the enemy killed-in-action.
Many people are calling for blood. They want the President and Secretary Panetta to summarily sentence the Marines to life in prison for war crimes or try them at the Hague.
None of that will happen.
I spoke with several veterans of Iraq/Afghanistan. They think the Marines are immature, misguided, and possibly a little war-punch-drunk. It happens. If you read the book With The Old Breed by EB Sledge, he describes mistreatment of enemy KIA on islands stormed by Marines in the Pacific. Numerous accounts of similar acts arose out of the Vietnam War. We can’t expect someone to kill another human being and then be 100% mentally straight after the events.
Today’s generation is no different from previous ones. Knowing that you killed a fellow human being has a profound effect on a person’s mind–whether done with an M-1 Carbine, an M-4, or a tank. Knowing that the person you killed was trying to kill you and your buddies only compounds matters.
Sherman was never more correct than when he asserted “War is Hell.” Sending people anywhere to kill other people is a nasty affair. Technicolor and Kodachrome haven’t changed war, they just brought evidence in support of it’s realities to the general public.
Just look at D-Day Invasion portrayals. They started with sanitized, John-Wayne-esque hero worship where only secondary characters died, and even that was done without showing blood, dismemberment, or gore.
Now, Steven Spielberg showed us what it was really like, complete with splattering red goo and guys running around with their own severed limbs.
D-Day didn’t change through the years, but our ability to portray it has.
But, back to the Marines…
Essentially, their actions are to the military as whipping-out a Sharpie in the endzone is to professional football. (H/T to JMo). Immaturity, lack of perspective, and lack of involved leadership results in idiotic behavior.
The Marines disregarded much of their training. Having completed pre-deployment training myself along with my prior 5 years as a Lieutenant and Captain in the Army Infantry, I can tell you that much of military training focuses on obeying the Geneva Conventions, following the rules, taking-care of your buddies, and acting in a way that supports mission accomplishment. That includes displaying respect for enemy KIA/WIA and civilians-on-the battlefield as a means of winning hearts and minds. We even practiced these principles at Ranger School.
The act, while public, will be addressed by military authorities using the Uniform Code of Military Justice (UCMJ). I promise you that the justice process in this matter will be as boring as possible, and the treatment of their cases will be given scrutiny by at least 4 levels of command (just like every other court-martial (and assuming their cases are actually brought to court-martial)). Leaders will consider the acts themselves, the stress experienced by those (presumably) young Marines, and the impact those actions have/had on the overall mission. It’s all very formulaic, and boring. I’d give you more detail, but then you’d stop reading this article.
How will they be punished? For starters, consider the two elements of Article 134, UCMJ (General Article):
That the accused did or failed to do certain acts; and
That, under the circumstances, the accused’s conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
There you go. Nothing new. Nothing to see here. The punishment can range from nothing to whatever the max is calculated to be. Ho hum.
Some don’t want it to be so sanitary and boring.
Some people want to bemoan their treatment as an indictment upon society and how each will be made into a scapegoat for our government’s (and society’s) shortcomings. None was more obvious than Norm Pattis’ blog. He spins the situation to support his own agenda and perhaps as a means of selling copies of his book.
It is distasteful to me.
January 11, 2012 § 1 Comment
Via Josh Gerstein at Politico.com:
The head of the team of military lawyers defending Guantanamo prisoners has instructed his attorneys to refuse to comply with new policies requiring outside review of their written communications with their clients held at the base, including the prisoners accused of plotting the Sept. 11, 2001 attacks.
If you hear the words “refuse to comply” used to describe current policies of defense lawyers dealing with military commanders, you know it’s going to get really fun, really quick.
Last month, Rear Admiral David Woods, the new commander of Guantanamo, issued instructions requiring inspection of all mail and other documents defense lawyers send to prisoners facing military commission prosecutions. Woods said the inspection would be conducted by a team of lawyers and law enforcement personnel separate from prosecutors in the cases.
However, defense lawyers have chafed at the new rules. On Sunday, the head of the uniformed military lawyers assigned to defend prisoners before the commissions, Marine Col. Jeffrey Colwell, instructed his subordinates to refuse to comply with the new procedures.
We’re not talking about the wonderful folks down in Miami who provide special “paralegal” services to their drug kingpin clients. Nope, we’re talking about military and civilian attorneys working directly with their indefinitely imprisoned clients–no paralegals allowed.
Colonel Colwell’s comments:
“It is my opinion that these orders, and the following procedures established by them, do not allow you to adequately safeguard attorney-client privileged communications,” Colwell wrote, in an e-mail released Wednesday by the American Civil Liberties Union and posted here. “These orders compel you to unlawfully reveal information related to the representation of a client in violation of “a professional rule requiring that client communications be kept confidential,” he said.
The words are measured, but effective (read: Attaboy). Let me translate them into everyday parlance since I’m no longer bound by military customs and courtesy:
“Dear Rear Admiral Woods, you can shove that order right up your star-wearing ass.”*
I was told by my last boss that the attorney-client relationship and privilege is sacrosanct. After researching the definition of sacrosanct, I concurred.
The most powerful, yet basic, tool at our disposal is the fact that communications with our clients are 100% privileged. It allows us to understand them fully. We can speak candidly about everything, and thereby paint their story with every available color on the palette. Nobody. Let me repeat that. Nobody has a right to see (or hear) those communications. Not an admiral, not a court, and not Congress. It is an absolute right and privilege held in high esteem by anyone who thinks that a human being deserves a fair shake.
The President can’t take it away, the courts can’t take it away, the masses gathered outside a courthouse for sensational trials can’t take it away, and some damned fool Admiral can’t either.
*If I knew our dear admiral friend acted from within a vacuum, I’d grant him a bit more courtesy. However, considering that he has oodles of lawyers available at his disposal, he has no excuse.