Advocacy at Xilitary Law The Lawyer's Reason and the Soldier's Faith

• Author: Colonel Frederick Bernays Wiener, ACS, Retired
• Pages: 01

In tkzs lecture Colonel Wiener draws upon his many gears of government senice m d private practice to provide a mew of triol and appellate advocacy withtn the military justice system and the federal courts

I. THE GREATEST SOLDIER-JURIST OF THEM ALL

Part of the title of my talk this afternoon,' and many of its themes, are taken directly from the words of one of the most towering figures of modern times, the single individual who without question can be deemed America's outstanding soldier-jurist. I refer of course to Captain and Brevet Caianel Oliver Wendell Holmes, Jr., of the 20th Massachusetts Volunteers, who fought and was three times aaunded in the Civil War.l At the close of his military service, he commenced the study of Soon he became a eonsummate lawyer, first editing the 12th edition of Kent'B Commen-

ofhe? gor;m&ntsl agency.*'Ph B.. 1927, Brawn Univ , LL B , 1930, Harvard Cniv ; LL D., 1969, Clevelsnd-Mnrahnll Law School Practiced law. 1930-1973. pnvateiy, in garern-menf ier~ice, and m rhe Army. A ~ m t m t to the Salicitar General of the United Stsfee. 1946-1948 Author of hooks and airides on legal, mibtaru, and hintaricsl subjects, including CIVILIANS UNDER

(1961)

SPEECHES

D. Howe ed 1962) 13 [herehater cited OCCABIOYAL SIEECHESI.

Captain Halmea received ~uccessive breiefa to Maor, Lleurenanr Colanel, and Colonel In 1867. bnek-dated to "the bloody 13th of March 1866.'' that were awarded for each of the three engagemenib in which he had been rounded Gen-eral Orders KO.

61, W.D., A G 0 , ~f 21, 35, 56 116 July 1887)

"Wendell. by the uay, IB wurkmg hard sf the law, and judglng by the fandneaa he has far talking over his p m r ~ ha 18 much inlerosfed in it He wxii master the theoreucsl part eaaiiy enough. I doubt not " Letter from John C Rapes to John CGray, Jr. (31 Jan. 1865) in WAR

LETTERS 1862-1866 (W. C Ford ed 1921) 450-

MILITARY JVST~CE

x The Soldids Faith 118951 m THE Occ~sioa~~

WENDELL HOLMES (M.

OP JUSTICE OLIVER

tones,' and then publishing his awn dassie, The Conimon Lau. in 1881.5 A year later he became a Justice of the Massachusetts Su-preme Judicial Court, the highest tribunal in that Commonwealth, where he served far twenty years, for the last three as Chief Justice. Then, in December 1902, he took his Seat an the Supreme Court of the United States And there, for neari? thirty years. he shaped American iaw, with more grace, and above all with more wisdom, than most of his brethren, then or later His influence did not cease with retirement in hi8 91st year, for many of the daetrinei that he first set forth in dissent subsequently became

Let me recall some of Justice Holmes' most striking passages that are particularly relevant here. In a famous address he said, "it seems to me that at this time we need education in the obvious more than investigation of the obscure."' And in one af his early opinions he had declared: "Great constitutional pro\,isianc must be admmistered with caution. Same play must be allowed for the joints of the machine, and it mu6t be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree a8 the courts."

"The war," the Justice said years afterwards, 'C~La great moral

experience," and of course it had an extraordinary impact on his thinking; no place there for sogG, sweet-scented nonsense about military matters. Let me share with you a few of the most striking excerpts from his talks and from his writings.

If we want conimpti. us march them up to the front with baganeta in thelr rear to die for B cause in uhich perhnpb they do not believe The enemy treat no! even ai B means but ai an obafaele t o be abolished. if 80 ~t may be I feel no pang% af aonaelenee over either step. 10

Those aho hsva not known uhar it IS t o march atrralght to ihere 30" ~ e e the bullets striking mag talk. If the) like. nhovt the tnds of civil life being greater than those of rar They ma3 be right But the

if?ded8 and Daubta (19161. in COLLECTED LEGAL PAPERS (19211 303. 304 [herevrafter cited a8 C L P I.

men who have been soaked bn a ea of death and who somehow have wrviued, have got Something from if which hsa transfigured their world They learned in P bitter school honor and faith They knew the psdmn of life and the irony of fate

The flag IS hut a bit of bunting to me who insists upon prose Yet, thanks to Marshall and to the men of his generation-and for this above ail we celebrate him and them-its red IS our hfe-blood, >ti sfam OUT world. ~ f s blue our heaven It wns our land At will II throws are) ourliv~ea*

And Justice Holmes had no patience with those who distorted constitutional provisions into attenuated technicalities that subverted justice. In the Porawo case he pointed out that the provision in the Philippine Bill of Rights, dram almost verbatim from the sixth amendment,1s "giving the accused the right to demand the nafure and cause of the accusation against him does not fasten forever upon those islands the inability af the seventeenth century common law to understand 01 accept a pleading that did not exclude every misinterpretation capable of occurring to intelligence fired with a desire to pervert."

All of those quotations, and of course many more are available, bear on the themes I propose to discuss with you today under the general heading of Advocacy at Military Lax,.

For I venture to suggest that the military lawyer is, in a very real sense, a special breed, one who combines with the reason of the lawyer the faith of the soldier. That does not mean that h c a r she, because, obedient to the rule laid down in the very first section of the United States Code, the masculine includes the feminine"-that does not mean that the miiitary lawyer must be a certified combat hero, or have successfully completed the ranger course, or be able to function 88 a parachutist, or as a frogman, or as a submariner. If indeed he can actually qualify a8 any of those, so much the better. After all, two Judge Advocates General of the Army won the Distinguished Service Cross in cambat, General Blanton Winship in

Act of 1 July 1902, eh 1368, $6, 22 Stat 891, 892

I. Paraao Y. United Stales. 207 U S 868, 812 (1YOl).

'I "In determining the meaning of any Act af Congress. unlem the context indi. estes ofhewiae . wards importing the msdeuiine gender include the feminine as well"lU.SC 41(1YTS).

command of an infantry regiment in World War I, General Eugene M. Caffey while leading an Engineer Special Brigade on Utah Beach in Normandy on D-Day m World War 11.

My point is that the military lawyer must combine the virtues of bath professions that he represents. He must have, first, the re. sourcefulness of the old-time solo practitioner, and here I quote from Mr. Justice Jackson: ". . , this vanishing country lawyer . . .

never quit. He could think of motions for every purpose under the sun, and he made them all. He moved far new trials, he appealed; and if he lost out in the end. he ioined the client at the tavern in damning the judgewhich is the last rite in closing an unsuccessful case, and I have officiated at many."

In addition, the military lawyer must have, at an irreducible minimum, a high degree of moral courage. He must, of course, treat with respect all of his military superiors. What they direct after discussion must be the guideline of his conduct. But he is bound to be feariess in tendering advice and in stating hia opinion. He ia bound by the same rules of professional ethics as is his counterpart in mufti.17 But he should always bear in mind that any behavior or position on his part that is morally pusillanimous constitutes conduct unbecoming a wearer of his country's uniform Once more to draw on Mi- Justice Holmes, "It is worse to be a coward than to lase an arm. It is better to be killed that to have a flabby soul. The true teaching of life is B tender hard-heartedness which has passed beyond sympathy and which expects every man to abide his lot as he is able to shape it." Is

11. THE ESSENTIAL SUBSTANCE OF ADVOCACY What is advocacy? Believe me, it is not raising one's voice and shouting in court: it is not putting an a show at trial or on appeal; nor is it arguing one's ea~e to the public before a television microphone. (Time was when the conventions of the profession forbade

30 A.B.A J 136, 135

lhll ."d m.lirh>lxdd roh.rml,Dd

Proceedings ~n Memory afJudge Paul W Brosrnan. 15 Feb 1956. 6 C M X XI. 18 Admiral Dirry 118591. an OCCASIOIAL

SPEECHES. ~"p'n note 1. st 109, l l D

R H Jsckeon. Trtbufi tu Country Loiyrre A Re~iru,

19781 ADVOCACY AT MILITARY LAW

that latter performance; time also was when a lawyer was not permitted ta advertise himself. But they order these matters differently now,1g and I suppose that the larger firms will soon be placing discreetly worded cards in the yellow p a g e w r perhaps even on billboards: "Fifty lawyers; no waiting.")

No, advocacy is, very simply, the art of persuasion. It is the proc-ess of persuading another, or others, in law always those who con-stitute B tribunal or fact-finding body, to agree with the position that is being advanced. Sir Winston Churchill, speaking of the thirty most active and fruitful years of his life, referred to them as "years of action and advocacy."

And, very plainly, advocacy needs to be learned. The present Chief Justice's recent denigration of the talents of the bar should not have come as a stunning surprise to any who have regularly listened to counsel in that most august of American tribunals, the Supreme Court of the United States. Thirty-odd years ago, my dear friend and mentor, MI' Justice Frankfurter, told me privately that four out of every five arguments that he wa8 required to hear were "not good." A decade or so later, when I inquired whether the pra-portion had changed, he replied in the negative, although he then suggested the word "inadequate."

So, let me assure you, advocacy badly needs to be learned, and so it needs to be taught. I...