My post discussing the efforts of appellate defense counsel to join the trial defense team in the retrial of United States v. McMurrin, and particularly the discussion in the comments, prompted me to recall my experiences attending training seminars as a Special Assistant US Attorney. During one seminar, at the National Advocacy Center in Columbia, SC, I experienced three days of intensive classroom instruction by AUSAs who were chosen for their knowledge, experience, and classroom demeanor, and flown-in to teach their particular subject. Each of these experts arrived on the day of their class, presented in impressive fashion, freely shared their contact information, and then returned to their districts and significant caseloads.

Thinking about that experience, I realize that in 5 years of active duty (a quarter-career!) I’ve experienced nothing in the military that even comes close. More often than not, military instructors read from old, inaccurate slides, are unfamiliar with the subject matter, and put the class to sleep. Senior officials or true subject-matter experts rarely appear, and if they do they usually give a brief “motivational speech” or “community update.” This is a generalization, but I can recall precious few impressive military instructors, and I suspect my experience is the norm.

Considering that as an armed force we train more than we do anything else, why as a legal community don’t we take it more seriously?

23 Responses to “Where are the teachers?”

  1. stewie says:

    Those instructors you speak of (civilian) were probably folks who did criminal law for 10, 15, 20, or more years. If you find someone in the military who has 10 years of total criminal law experience it is like finding the holy grail. That answers your question, we simply do not have a whole lot of deep criminal law experts in the military.
    And many of the ones we do have, aren’t currently doing traditional crim law jobs and they certainly are not teaching. At TJAGLCS or at the Naval Justice School or the like, we have what 0-4s and 0-5s teaching. Folks who mostly have less than 10 years total criminal law experience, many of which have less than 5 total years experience. Smart folks, dedicated, hard working, but there is no substitute for experience, and we can’t match the civilian sector because at the end of the day most of us are Jack’s of All Trades.

  2. H Lime says:

    Another thoughtful post and response. Maybe, Stewie, the solution is just the DOJ model: those who know, do–grab the best active practitioners–and there are some fine, fine, litigators out there–and have NJS, TJAGSA, and Maxwell become what they should be. Forums where the best practitioners are flown in to teach the skills they are currently practicing–skills that have a short half life, particularly when the appellate law changes so quickly and constantly.

    Not quite the ideal in that our best practitioners never or seldom will have the time on ground that DOJ practitioners do, but certainly better than a situation where teachers may not be practitioners, the slide shows may not reflect the most recent appellate law, and the liveliness or contribution of our military academic “debate,” such as it is, is at something of a nadir in the eyes of some observers..

    Even if our military academics had much to contribute, Zachary’s point is very important. At the best appellate conferences, including AJEI, academic speakers make up a minority of the panels. It’s practitioners, practitioners, practitioners. Those who are in the arena. We’re not in the business of building snap-loc academics or automatons; we need litigators that can hit the ground running.

  3. who's your daddy says:

    Good points by all.  I humbly add a few thoughts.  First, the DoJ is essentially in the business of trying cases, whereas the Military is a war-fighting machine (best in the world) where the lawyers “must” be generalists in order to advance the mission.  The types of cases are vastly different.  DoJ typically brings bigger cases (ALL GCM and then some) after lengthy grand jury investigations.  They typically hire “junior” prosecutors with 5-15 years experience.  The military model is more akin to a mid-sized city of 50,000.  I doubt the training provided in Tuscaloosa, Abilene, Fargo, Worcester, or Fresno is much more advanced than military model.

    That said, there is room for improvement in training in all branches and these posts raise some good ideas.  With declining SPCMs over last decade and even less experienced second and third tour practitioners, training is even more paramount.  Perhaps the vast amount of AUSAs and DOJ trial attorneys in the reserves could be better utilized.  Maybe each of the JAG schools should have one or more civilians with the type of experience you suggest to add some meat to the 0-4s and 0-5s. 

  4. John Baker says:

    Zach,

    I disagree with your premise that we do not take litigation training seriously in the military.  Perhaps your experience is reflective of your not having much litigation experience or at least not with the DSO, but over the last several years the training we have offered within the DSO has NOT been military instructors unfamiliar with the subject matter reading for old, inaccurate slides, and putting the the classes to sleep.  The DSO is active, engaged, and providing training (albeit on a shoestring budget).  Our annual training conference sounds very similar to the classes you attended at the National Advocacy Center. The training sessions the RDCs run are instructive, focused, and provide individual counsel an opportunity to teach their peers.  My reserve detachment is phenomenal, we work closely with Navy DCAP, and the Appellate Branch provides instructors when and where we need them.   On the prosecution side, TCAP is stacked — they have an experienced and motivated OIC, a big budget, a new sharepoint site, and, I’m told, a very high quality reserve branch with several AUSAs and state prosecutors.  This coming week provides an example of where the instructors are — they’ll be in Charleston, Pendleton, Okinawa, and Beaufort training Marines.  TCAP is running a week long seminar, with an emphasis on sex assault, and are bringing in experts in DNA, computer forensics, and toxicology – those experts will then spend a day training the eastern region DCs who will be in Beaufort for a two day training seminar; in Okinawa there’s a two day RDC seminar that includes training by sexual assault nurses, former judges, capital litigators, and experts in defending sex assaults cases in the military;  at Pendleton the reserve branch and the new Marine Corps DCAP will be assisting the RDC West put on a similar two day training seminar.  In the recent past and over the next year, we will hold similar training events, assisted by a our reserve detachments, our sister service counterparts, and a number of high quality, dedicated, and experienced civilian defense counsel.  Additionally, we send counsel (almost always funded at the local SJA level – who splits their dollars fairly between the TCs and DCs) to civilian CLEs as well as CLEs at the JAG school, NJS and Maxwell.  We are also experimenting with use of defense connect on-line to post courses and have increased the use of VTC to reduce costs.  Additionally, we’ve been working closely with our Navy counterparts on both sides and NJS to better coordinate and improve the instruction of litigation CLEs that NJS offers.  The judiciary, OIC, SJAs and, most importantly, the SJA to CMC, support these training events.  Our sister service have similar training programs that are supported from their TJAGs downward.  Will the quality of instruction always match or come close to what you saw in the federal system — no, can our training programs improve — of course, do I wish we had more training dollars — absolutely yes (particularly for the DSO), do the budget realities mean that we will have to continue to look to maximize our limited training dollars — certainly – but do we have a training program that allows us to continue implement the Strategic Action Plan’s goal of improving the practice of law — yes.    
     

  5. who's your daddy says:

    Well stated Col Baker.  Many of the initiatives are more recent (e.g. TCAP), but the USMC has always done a decent job of training.  Perhaps Zach’s info is either dated or more relevant to other services.  That said, we can all agree that with decreased cases to cut teeth on and increased operational law requirements – the need for training is at an all time high.  Hopefully, the junior JAGS are as enthusiastic about receiving “courtroom/litigation training” as you are in helping to implement it.  I say that b/c another related topic is that junior officers – particularly in USMC and Army – are more energetic about deploying and oplaw than trying cases.  This is different from 15-years ago when Oplaw was boring and hypothetical and the real lawyers wanted to be in the courtroom.  I’m curious if you agree with this hypothesis or not?  But, please not the company song where we are strong everywhere and the emporer has no clothes — something must have smelled for the U.S. Senate to have gotten involved.  And, as i recall it is the JAG community failing in courtroom/litigation arena that has drawn the most ire from Senate and public criticism (e.g. Foster and VWAP and 10 years to litigate Haditha/Hamdiniya and frankly whether we like or not we OWN the “military” commissions).

    Back to Christmas decorating.  Happy Holidays!!  Is it too early for something strong? 

  6. LoneStarJA says:

    I personally think we should be on the look-out for certain reserve-component Judge Advocates to more regularly come down and teach a class or two. For example, I know of quite a few 0-3s and 0-4s who are extremely experienced in criminal law and litigation through their regular jobs, as well as experienced in military practice through deployments and drill. One guy I encountered during training some time ago was an O-3 Guardsman who has such a breadth of experience, academic reputation, and practical knowledge gained from military and private practice that he could probably knock the socks off any typical power point class we normally get. Maybe these are some of the guys our training commanders should be on the look-out for? In this scenario, guys like this are still in the trenches and therefore current, but also experienced beyond a typical active duty career and able to share their knowledge.

  7. stewie says:

    The military needs generalists, got it, understand it. However, seems to me, there is room for a limited number of specialists too. We seem to understand that when it comes to contracting for example, but we aren’t quite there yet with criminal law, our only explicit statutory function.

  8. Cadwalader says:

    During the time I served in military justice billets, I found the training opportunities to be excellent – be it the New Developments Class at TJAGSA/TJAGLCS, the prosecuting/defending complex cases courses offered by NJS, the short course at Northwestern, the travelling roads shows offered by the USMCR folks etc.  Moreover, the various judiciaries often provided great PME’s.  I also found in-house training at LSSS’s or legal shops around the Fleet to be very valuable.  Moreover, I was always able to reach out to JAM, Code 20, App Gov, and Army TCAP for responsive and comprehensive support as TC.   There is always room for improvement and it seems from Col Baker’s comment that training continues to become better organized and delivered. But, in general – at least for this judge advocate – Capt Spillman’s experiences were not the norm.

  9. stewie says:

    A top level college football team is really really good, but it ain’t the NFL. I think that’s the point being made, not that current training is poor. Whether or not we will ever be able to be the NFL given our mission requirements might be a different story.

  10. Lou Puleo says:

    For what it’s worth I agree with Mr Spilman, although we are getting better.  The problem is two-fold: (1) we don’t have a clear training package which “mandates”/”suggests” certain courses for litigation billets based on grade and position.  Over the years I’ve wasted numerous hours in marginal training courses.  But the real “problem”:

    (2) Despite all the training, the real value comes from mentorship, self-education, and honest self-critique.  There is no short cut or special training or course that will make a good litigator- it’s hard work and long hours of reading and observing those who are good at the craft.  It’s analyzing your cases after trial and determining what worked and what didn’t- it’s thinking of better ways to approach a skill- talking with members after trial- it’s a lot of self-study and listening to others in the Ct-rm.   Those motivated to be better litigators will become so, even if they recieve little or no formal training, as long as they dedicate themselves to their profession.  Stop looking for the better teachers and become a better student.  /r

  11. Zachary Spilman says:

    Col Baker,

    I had the opportunity about 3 years ago to attend one of your training seminars. From memory it was good, but was taught primarily by reservists. 

    The title of my post was deliberate; I don’t think we have bad programs or institutions, I think we lack the teaching mindset. A civilian in a suit or a reservist with a day-job, while good, is no substitute for the kind of pervasive expertise I saw in the USAO (relevant because of my comment about the growing similarities between courts-martial and Article III courts).

    That expertise was largely a function of mindset. They wanted to be exceptional. For example, I’m convinced that the instructor who taught us federal sentencing at the NAC had the entire guidelines committed to memory (we had the books and posed hypotheticals, which he answered without notes!). The experience made me, and my classmates, want to study the guidelines (a painful exercise). I observed a similar phenomenon during training in Raleigh.

    I see, and read about (in appellate caselaw), errors that stem from a superficial understanding of our unique system of law. Maybe we are all generalists, but the resources and infrastructure to develop expertise are readily available; what’s missing is the teachers who will evaluate, explain, and inspire. The “phenomenal reserve detachment” that trains during the periodic seminar is still too-absent to fill this void.

    I asked “why . . . don’t we take it more seriously” because in many institutions only the excellent survive, and only the inspired advance. I don’t think it’s cynical to say that the military has become far more bureaucratic, and that the consequences are visible (and, for the accused – or the victim – painfully real). However, while there are certainly outstanding people in key positions, there is institutional indifference.

    I’d love to be dead wrong about this. To have my experience be a pathetic exception. Even just to have the future be an improvement over the past. But in my half-decade I have seen and heard plenty to make me pessimistic.

  12. Seamus Quinn says:

    No doubt there’s a line AUSA in the midwest somewhere who thinks the way DOJ does business stinks and the Marine Corps has the leadership and inspiration thing all figured out. That’s not an argument for complacency, but for perspective. If courts-martial and civilian courts are in fact tangerines and oranges these days that’s fine (though it seems to me the distinctions- emphasis on good order and discipline,esp- remain much more significant than the similarities). But I’m not sure we should necessarily regard party tricks like recalling from memory information which is readily accessible when necessary– federal sentencing guidelines, eg– too highly.

  13. Cadwalader says:

    Col Puleo’s great comment reminds me of the old saying that “a poor craftsman blames his tools.”

  14. Dew_Process says:

    ZS – There’s an institutional limitation in the military that USAO’s and Federal PD’s offices don’t have to deal with, viz., people PCS’ing every 2 to 3 years, getting someone new in and re-inventing the wheel.  But, I tend to agree that the “mindset” (or leadership) also needs to be addressed.  E.g., the AF for years made extensive use of JAG Individual Mobilization Augmentees [IMA’s] – Reservists who were attached not to a Reserve Unit, but to an active duty JAG office.  We had 5 IMA’s in a JAG office that had 8 active duty JAG’s, a civilian each for contracts and labor.  Three of us had each been assigned to that office for 12+ years, meaning we had 36+ years of “institutional knowledge.”  Each IMA was also “assigned” to be a mentor for one of the young, active duty JAGs and one of us was always assigned to assist Trial Counsel in any GCM or serious criminal investigation.  The flexibility was what made it work – the local IMA’s could come in for an afternoon or 1 or 2 days.  After 9/11 when the active duty people started deploying, the “slack” was filled in by someone already familiar with both the office, base issues and personnel.

    I don’t know if anything like that is feasible in the sea services, but I’m currently dealing with an Army Chief of Justice who is a Reservist filling in for his deployed counterpart, who in his civilian practice, is a DoJ trial attorney.  But, there’s a tremendous opportunity for that JAG office to assist young Trial Counsel.

    And for those who may have forgotten (or never seen it), Col Puleo’s great article in the August 2008, Army Lawyer, “Bulletproof Your Trial: How to Avoid Common Mistakes That Jeopardize Your Case on Appeal,” is a tremendous resource (meaning, worth periodic re-reading) for all military justice litigators.

  15. Lou Puleo says:

    Mr Quinn, I don’t think that was Mr Spilman’s point. i.e., party tricks. I will let him speak for himself but his comments support my view is that while training is good and valuable and necessary, those motivated to learn will do so regardless of the challenges (whatever they may be). Mr Spilman’s experience motivated him to become a better litigator (an expert). So the question isn’t necessarily “Where are the teachers” more than “Where are the students who want to be exceptional.” It’s not a “teaching mindset” it’s a “learing mindsett” that may be lacking.

    Of course this does not to forgive our rather lackluster training oppurtunities and our institutional failure to have a true/accurate/logical training program (disciplined training plan with evaluation based upon TIS, grade, billet).

    Dew-Process– thanks for the plug- new Article in Air Force Law Review on revising the CA action- in case your interested  /r

  16. Dew_Process says:

    For those interested, Col Puleo’s recent article is here: http://www.afjag.af.mil/shared/media/document/AFD-111121-039.pdf  which is the AF Law Review’s Military Justice Edition (2011).  There are a number of timely articles, e.g., on corroboration, discovery and yes, the problems with Article 120.

  17. H Lime says:

    All too easy to shift this discussion to mediocre students–and judge advocates. An important issue (and if Col Puleo suggests it, it’s wise to cock an ear his way attentively). But Zach’s question, and getting the right answer, is make or break for the future of military justice. We can pose this as a Zenlike chicken-or-egg dilemma, twiddle our thumbs over whether it’s the teachers or students, or we can tackle the very real issue Zach poses.

    Frankly, Navy and Marine TCAP are, today, very visibly and diligently travelling and training like nobody’s business. Does that create the unified prosecution team the United States needs to win these things on appeal, and not just in the short run at trial? Does TCAP training fill the gaps identified by Zach? Does a training regimen tied not primarily to active litigators, a la Justice and AJEI, but to “training offices,” fill the gaps?

    I don’t know. Maybe yes, maybe no: but the jury is out, as well on the question of whether the current swell in TCAP training activity survives the current billet holders and has some systemic longevity.

  18. stewie says:

    “because in many institutions only the excellent survive, and only the inspired advance.”
    Might be going a bit far, as I’m not sure there are many institutions in human existence of which that is actually true.

  19. Hines says:

    Consistent with Colonel Baker’s comments, I have served as an instructor for the new TCAP and the training instituted by LtCol Parsons and now being headed up by Major Schotemeyer is a huge step up from the past. I don not agree that we lack active duty people who have the experience to teach. Colonel Baker is a great example of someone with lots of litigation experience, and we have many others who have significant expereince in the courtroom.  The problem is that spending a lot of time in the courtroom is both difficult to accomplish and not the prevailing wisdom on how to get promoted.  It’s hard to accomplish because people seldom find themselves consistently serving in the courtroom.  But it’s possible.  I did a full tour as TC and MJO, then a full tour at Code 46, a full tour as MJO at Miramar, a two year tour as a military judge, and now I am at the Commissions.  That’s the exception to the rule though, and for years my bosses kept telling me if I kept it up I would not get promoted, etc.  In my own case, I can only state that I worked my bolt to attend every litigation course available: the Army CLAC course at TJAGSA is a great course and so is the Air Force Course at Maxwell.  When I was a SAUSA I was able to attend the NAC four times, all at DOJ expense.  So I think the opportunities are out there. 

  20. who's your daddy says:

    @Hines,
    This career path is the exception rather than the norm, and your superiors were sage to at least warn you that on balance, it significantly hampers your ability to advance and be promoted.  
    Additionally, “billets and assignments” are only part of the equation.  The number of cases has dwindled dramatically so that two years as TC or CTC or MOJO and so on ain’t what it used to be.  Thus, in 1997 a TC/DC at Pendleton/Lejeune could expect to litigate over 120 CMs in a year and be lead counsel in 10 member’s cases over 2.2 year time span.  Now you can find RDCs (or MOJOs) with 2-3 tours who have not done 10 member’s cases in their career.  This is isn’t a matter of bravado, it just illustrates that a ton of “lessons learned the hard way” are left on the table.

    Finally, let me just say that while on average the caliber of courtroom talent will be less than DoJ, there is no shame.  DoD attorneys are asked to do so much more.  Indeed, i submit that if your family can handle/welcome the frequent moves, then there is simply no legal career path that can match the challenge, excitement, and fulfillment of being a JAG in our armed forces.  

    Finally finally really finally, let me just say that as the sun sets on Afghanistan, we better start getting ready for cases to rise.  It won’t be long before the opportunity for drugs and alcohol increase and NCIS is back in the crime fighting business and CAs tolerance declines.  Military utopia is on the horizon and the courtroom warriors will again be the ones with the swagger. 

  21. stewie says:

    In the past a mostly crim law career was the exception and a hindrance to promotion, but it appears at least in the Army that this truism is morphing. I know a few Majors and Captains with 5+ years of crim law experience, and there are a few O-6s today who seem to have done mostly crim law careers with brief stops somewhere else for 2 years then back to crim law.

    So it seems/feels like the crisis in crim law competence is spawning a changing attitude towards some level of specialization, at least in the Army, and at least temporarily.

  22. Random TC says:

    WYD – you’re crazy if you think the cases will return to the days of yore. Most CA’s haven’t grown up in a court-martial heavy system and when the problems of long dwell time return (which they will) they won’t turn to a slow, cumbersome, inefficient and rather pro defense system to resolve their problems. They will turn on the admin flamethrower like never before – quicker and cheaper, music to a CA’s ears. Cases may rise some a bit, but “military utopia” is nowhere to be found. Plus NCIS is focused on everything but DON related crime. I hate to say it but I am pessimist.

    That said, we aren’t the DoJ and never will be, we do different jobs, apples and oranges. Our job is to help the warfighter fight and win(often forgotten by many) by assisting with good order and discipline, not to exist for litigation only purposes.

  23. stewie says:

    Random TC that’s a great company line at the end, but case law and Congress seem to disagree with you given that we are looking more and more like an Art III Court every day, and I would submit to you that means we need some “litigation only folks” around to help the warfighter win by assisting with good order and discipline.