Pretrial Conferences for Military Justice

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For the past few years, the pretrial orders in the judicial circuit where I practice the majority of my cases has required a pretrial status conference between the government and the defense counsel. Our then chief circuit judge mandated these joint meetings between the parties to facilitate communication. I imagine these conferences were established to hopefully help us to identify areas that we could reach common understanding and maybe stop issues from delaying trials. Now that our then chief circuit judge is the Chief of the Army’s Trial judiciary, I had hoped that these pretrial conferences would become mandated in all circuits. Perhaps they already are as a matter of practice among the individual circuits.

In this post, I want to advocate why I believe pretrial status conferences should be required and why counsel should use them earnestly and not simply to check a box.

First, when counsel meet face-to-face, I think it humanizes them one to the other. I believe it is easier in this digital age to distance ourselves from “the other side.” It is one thing to send an email and another to sit across the table from someone and convey the same message.

Second, the attorneys on a given case are best situated to identify the issues that can become “show stoppers” for a trial. Highlighting issues for either side has the potential to ensure smooth process. In a recent pretrial conference for a case that is docketed for the end of November, the government counsel asked me whether I envisioned needing to ask for any delays. We have not had cases against each other before, so this presented me with a chance to explain my philosophy about delays – I don’t like them. I explained that there are many reasons I do not favor delays, but I emphasized why delays are especially difficult emotionally for my clients. I expounded on this in a recent podcast when I told listeners about a case that reset four times and the toll it took on my client. Nearly two decades ago the defense bar seemed notorious for seeking delays, and from my position as a young government counsel, it seemed they wanted to delay the inevitable conviction. I am certain there are counsel still practicing today who seek continuances wherever possible, but I am not one of them. The human element for all concerned is critical to my consideration. I also am of the mindset that cases rarely get better with time, whether that means the government has more time to prepare or otherwise. I probably would not have had the chance to explain my feeling on delays to this government counsel absent his question in a pretrial status conference.

Third, pretrial status conferences can be helpful in identifying potential matters for discovery. The three issues that seem to delay trials are discovery, witnesses, and experts. No matter how clear any drafter feels they are being in a written discovery request, inevitably we lose meaning when we are at a distance. Several years ago, in a then pending Navy court-martial, I was in San Diego litigating eight motions of the initial fourteen motionswe filed. One of those was a motion to compel answers to our discovery request in some instances and to outright compel discovery that had been denied. I wish we had been in a jurisdiction that required pretrial status conferences. I kid you not that in response to the judge’s questions on the record, the trial counsel told the military judge after the judge’s repeated and pointed questions, that he denied the requested discovery because he did not know what the documents were that I was seeking. He literally did not know what they were. Instead of asking his fellow counsel, conducting research, or (gasp) calling the defense counsel and daring to be vulnerable enough to admit he did able to outline an unusual request for what I was seeking in discovery. If we had a pretrial status conference, maybe he would have asked me what in the world I was talking about. This case was one that included a great deal of potential evidence that was highly classified, and I did not know what these documents were before the case; I had the benefit of my client explaining them to me and why they would be important to our defense. Rather than spending a few minutes in a conference, we wasted my time, the government’s time, and the court’s time.

Fourth, pretrial conferences are highly useful because they require you to talk about potential expert issues. Again, no matter how hard we try in our written requests, inevitably much can be “lost in translation.” There seems to be a genuine mistrust between the parties when it comes to expert requests. Government attorneys seem to believe that defense counsel only ask for experts to drive up the cost of litigation and not from an earnest need. Maybe that is the agenda for some defense counsel but sitting down with those among us who only ask when we feel there is a bona fide need helps the prosecutor understand why we are legitimately asking. That is, pretrial conferences give the opportunity for this coming together if the parties treat it as that chance. Please understand that I am talking about opportunities for the meeting of the minds. I do find it frustrating when I feel like I reached that counsel, but that counsel is several steps removed from the legal advisor to the decision maker – an inefficiency left for another day…

Pretrial status conferences are as advantageous as the counsel who use them. They promote collegiality, open dialogue, and efficiency in process. I will continue to use them in earnest, and I hope that others do the same.

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