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Are Incompetent Civilian Lawyers Flooding the Military Justice System?

In this episode, criminal defense attorneys Michael Waddington and Noel Tipon discuss whether incompetent civilian lawyers are flooding the military justice system and debate how to properly vet and select the best military defense lawyer for your court martial.

Below is a transcript from the YouTube video: Are Incompetent Civilian Lawyers Flooding the Military Justice System?

Noel Tipon, Attorney at Law 0:00
Welcome to another edition of the military law News Network. I’m Noel Tipon. I’m here with fellow court-martial attorney Michael Waddington. Michael, welcome to the show.

Michael Waddington, Court-martial lawyer 0:24
Noel. In this episode, we want to talk about the new influx of lawyers that are popping up and military courts, civilian lawyers around the country and around the world that are leaving a lot to be desired in terms of court-martial skill in court-martial experience. So out there in your neck of the woods, are you seeing a new influx of Savannah attorneys showing up in court marshals?

Noel Tipon, Attorney at Law 0:50
Well, here in Hawaii, I think just like with all other places in the world, and in America, more and more service members are looking to hire civilian defense counsel, they’ve been, you know, in this day and age, more courts-martial are being prosecuted. And there is a level of dissatisfaction with the military lawyers that most service members get detailed.

So they’re turning to more and more service members are turning to civilian defense counsel. But the problem that I see out here in the Pacific is that the civilian defense counsel they’re turning to doesn’t have any experience doing military course martial. They’re just people who have never had any military court-martial experienced civilians. Those who were never were in the military and have decided to make a quick, easy buck by representing service members, mainly to the service of military service members, and representing them in these complex court-martials.

Michael Waddington, Attorney at Law 1:44
And, well, to make matters worse, what I’m seeing is many lawyers out there that are out there. Now, Savannah attorneys that just aren’t good Criminal Lawyers, they might have been in the army, the Navy, the Air Force, they might have been around for a couple of years, the majority of them have tried to a verdict, the ones I’m talking about less than ten jury trials. So if you’ve been a lawyer for 15 years, and you’ve tried less than ten jury trials to a verdict as a defense counsel, then you have a lot to learn.

Because you have no business and marketing yourself as an expert in military law as an expert, criminal defense attorney, because you’re not, you’re an amateur. But the problem is, with the internet, you see it all the time. People put up a website claiming all these things. They don’t back it up. Some unknowing service member or their mom and dad gets online, Google something they see this person. According to his website, he’s the most outstanding lawyer. They get into court. And they quickly realize that their civilian lawyer is being manhandled because they’re incompetent.

Noel Tipon, Attorney at Law 2:48
You know, the problem that I see as well is that the former service members who are out there putting their name out as expert experts in a military court-martial or military court-martial defense, the problem that I see is that they’re using these Google search terms out there and lowering these service members in because they have served maybe 20 years in the military. But Mike, you know, as well, as I do, that, if you spend 20 years in the military, or 20 plus years in the military, the overwhelming majority of your time, and it’s just a matter of being in the military, is you move from being a trial lawyer to an admin position. And there how many general officers or colonels Do you see out there who are fighting the battle on the battlefield?

It’s just like with any other position in the military. Most of these guys in the military for 20 plus years have moved out of being trial attorneys 1015 years ago. So it is an infrequent circumstance that you spent 20 years in the military as a courtroom litigator as a trial attorney. And they market themselves out there as people who have courtroom experience. And they and they make it seem like they’ve been trying courts-martial up until the day they get out of the military. And it just isn’t true.

They get moved out of their position because they can’t stay in the courtroom for that long. They just can’t. The military finds that as a negative, and they have to move them out of the courtroom because they want to get promoted. And you know, most military service members want to get promoted. But when they get out, they market themselves as some expert in trying cases, when that just isn’t the case. And it’s not their fault, but it just is just the nature of the military. And what happens is this, the service member looks them up on Google, they say, oh, the guy was spent 20 years 20 plus years in the military.

He was a Judge Advocate. He must know what he’s doing. And while maybe he didn’t know what he was doing 1015 years ago, and he was in the courtroom. By the time he gets out. He all the skills have diminished. And Mike, you are an experienced litigator. You have to try cases every week, every month, to keep that skill up. And that’s what I see is the problem is that kind of what you’ve got What you’ve observed as well, well,

Michael Waddington, Attorney at Law 5:02
there are two types, you have the guys who did a couple of years as a prosecutor, maybe a defense, and then they spent 17 years behind a desk, reviewing contracts. And it’s like being a professional boxer. You might have been in your prime when you were younger. But if you haven’t been in the ring, and it’s been 17 years, you’re not going to be that good. It’s going to you might not ever be that good again, assuming you’re even good, to begin with.

The other thing is this. Lawyers are being kicked out of the military, sometimes being forced out for criminal misconduct and moral misconduct. So now they get kicked out of the military, sometimes not even within with an honorable discharge. And next thing, you know, they’re going around signing up service members, telling them that this great attorney, when it’s not true, without disclosing their whole, their whole history, and past, and they have in some of these attorneys have minimal experience.

That’s why I always tell people, ask the person what they did in the military, and ask for details, if it’s not on the website, and don’t assume everything you read on the website is true. If you only prosecute in the military, you never defended, and you were forced out of the military, you know, mentor for misconduct or kicked out, I would think twice unless the person has an outstanding trial record for the next ten years. And they’ve proven themselves.

I wouldn’t give a military defense lawyer $20,000 $30,000 to put my child’s life in their hands if they can’t even manage their affairs. So I’m dealing with people that I mean, aside from the ones that are good to experience, you have the one extreme, or they just happen to be in the military for a while, and they’re not that experienced, or they lack experience, and they need to make money. So they kind of miss they bend the truth a little bit on the website about their level of skill. And that’s why I also tell you to tell people, no, well, ask them how many trials they’ve done as a criminal defense lawyer, as lead counsel, is the lawyer is like, well, they don’t want to answer it. They think they’ve maybe done five or 10.

You know, why don’t we just put your life in the hands of someone who’s only done 10 cases? You know, when they’re there, dozens of lawyers out there have done 100 200 cases and have a high win rate. I just don’t understand it. But a lot of it has to do with consumers just not doing their homework and hiring the first guy on Google, which is another thing as you know, some people pay to have their website ranked at the top of Google, and they spend a lot of money doing it. That does not mean that that person that paid Google $5,000 a month is a competent attorney. That’s up to you to do your homework and do your research.

Noel Tipon, Attorney at Law 7:41
Oh, my, I agree. You have to as a consumer, and when you’re a service member and looking for a lawyer, you are a consumer. You have to do your homework concerning the military defense attorney that you choose. I mean, you have to ask that lawyer those tough questions. How many jury trials have you tried to a verdict? Now, sometimes there are lawyers out there who get the bad draws, get bad facts, and lose a lot of cases. But they should be able to tell you the cases they’ve taken to a jury verdict with specificity.

I know there’s a lot of trial attorneys out there who like to claim in their statistics for lack of a better way to describe it, all of the trials that they might have done, and they try and count things like guilty pleas, they try and add those all into their specifics. It is statistics. And while those might be good, you know, practice arena, they’re not a real proving ground for a real court-martial that you practice in front of a jury where there are jurors who are watching your every move, who hang on your every word.

I try and impart to some of my clients that it’s not so much a rote script that you follow. It is only through experience, going through the trenches and the battles, and failing in courts-martial and in trials where you learn how to do these. And these and so my point is, these court-martial attorneys, or these so-called court-martial attorneys, who just don’t have that requisite experience, they haven’t been through those battle-tested times. They haven’t faced things that, you know, come from left field.

They don’t know how to deal with those things. And that’s really where the good trial attorney makes his money. I mean, Mike, you’ve been trying so many cases throughout your career by this point in your life. How many times have you been surprised in a court-martial? And that’s what experience is all about, right? So how many times have you been by this point in your career where you are surprised at what happens in a court-martial?

Michael Waddington, Attorney at Law 9:50
Well, I mean, you know that you can see the moves coming down, coming down the line, and you can set these plays up just like if you’re a professional basketball player. You know, we’ve been playing with the same team. Let’s say you’re on the team with an on team with some of the basketball players. You know, their every move. You know what the opponents are going to do. So you can kind of see these things and manipulate the system. Yet I am sometimes surprised with the stupidity of the witnesses who try to outsmart me and try to manipulate the jurors and lie and things I sometimes get, yes, however, maybe a lot of these things.

While it’s not scripted out, we do contingency planning. If the witness this, and this and this and this, then we’re going to do this. And then this happens. And that happens. And we’re thinking like ten steps down the road to about 15 different contingencies because you never know what the witness will say because they always change your story on the stand. But that’s where experience comes in.

When I need to impeach a witness, I don’t have time to go into a book in front of the jury and start looking up how to, you know, impeach a witness with a prior statement that they made. I need to know those things. And the only way that I know those things is, yes, study, you know, get you so far. But, still, doing it under the gun, literally week after week, for decades, a decade and a half are like I’ve been doing this, then you start to figure out these things almost come as it comes to you it can come to you in your sleep, you don’t have to think about it at all.

Noel Tipon, Attorney at Law 11:26
And the point is that you don’t miss a stride, and the jury that sees you does not miss a stride. They understand that you know the case better than anybody else. And even if you don’t, but that’s what experience is all about. And if you’re an attorney who’s just picking up a court-martial as a side business thinking, Oh, look, it’s just a military court-martial. How hard can it be? The detailed defense counsel, these guys are only a couple of years out of law school, and they’re trying these high-level cases.

That I mean, to me, that’s a mistake in and of itself. But that’s something I can’t fix in the system if they think that they can just come in and try these cases. If if you’re if you hired a civilian counsel, and they don’t even know what the contents of the UCMJ are, if they don’t know what the RCM is and the rules for court-martial, if they don’t know what the Mr. E’s are, if they don’t know those things off the top of their head if they gotta go look over to the detailed military council and say, hey, look, what’s this?

What’s that guy’s rank? I mean, how do you think they’re going to react in the dynamic environment of a courtroom where the witnesses are lying? And yeah, you can plan that you can count on the fact that witnesses are going to lie or change the story or forget things. Sure. But if you don’t even know the rules, and you’re struggling with that, you’re struggling with a rank or the rank structure, chains of command. But if these guys don’t even know those basic things, how do you think that they’re going to be able to be on their game? I mean, the best example that I can think of is, is sports.

If you’re a pitcher and those people who watch baseball, pitching is all about fundamentals. It is about the fundamentals of throwing the ball over the plate, not aiming the ball. And if you’re worried about yourself, if you’re worried about something as small as the fundamentals, because you haven’t been doing it for long enough, and keeping up those fundamentals to keep your mechanics, right, you hit the ball is going to be all over the place. So that’s why rookie pitchers get lit up.

That’s why they did and experienced pitchers. They do well. And the same goes for the dynamics of a courtroom and what you’ll experience in a courtroom. So if you’re out there, and you’re looking for civilian counsel. Suppose you made the decision that you want to hire civilian defense counsel. Do your homework. Choose the right one, someone who can answer the question about how many jury trials they’ve tried to verdict. I got it. There are some dogs you take in there but win or lose. Yeah. But you got to try the jury trials to verdict. And then after that, you can ask them about their wins and losses,

Michael Waddington, Court-martial lawyer 14:02
do your homework. They defended as a criminal defense attorney if the person can’t tell you the last ten jury trials. They would have a problem if the person didn’t do any didn’t defend anyone on active duty. And there, they’re claiming that they’re a great jag military lawyer, then look elsewhere. I would rather hire someone who’s done 300 jury trials as a civilian than someone who’s been on active duty for ten years and has only done 10 cases,

Noel Tipon, Attorney at Law 14:29
experience counts more so than actual active duty time. I will agree with that. Mike. So you have to make sure that the military counselor, the civilian counsel you hire who claims to have been in the military, actually did military court-martial and did a substantial amount of those. But I agree. I would much rather have a guy who has actual courtroom experience than less experienced but has active duty time because there’s no substitute for experience in the courtroom,

Michael Waddington, Attorney at Law 15:01
you know, another great way to figure out whether or not someone’s a dud, as an military defense attorney, you know, is to ask, you know, what is the reputation? Let’s say you’re doing an Air Force case, ask your lawyer, you know, what is this person’s reputation that, you know, you may give the guy’s name? What’s his experience? And what’s his reputation? If you know it, the Air Force has defense lawyers who are pretty interconnected. And there are lawyers out there that are known in the military in the Air Force in particular as being terrible lawyers that get terrible results that nobody wants to work with.

Because they complete them, they’re terrible. And so sometimes you ask your lawyer, hey, I talked to this guy on the phone, what do you know about them? They could write out to their buddies. What do you know about Mike Waddington? And hopefully, you would, they would get good feedback, you know, regarding me, but if I have a reputation amongst all the Air Force, debt jag lawyers as being just a sucky lawyer, which I don’t By the way, then that’s something that you might want to know about. So I always encourage my potential client, ask your ADC, what are your TDs? What is my reputation? If you have any doubts,

Noel Tipon, Attorney at Law 16:14
It is much better to go with a military defense counsel, the detailed military defense counsel than to hire an inexpensive, no-good civilian. Because you just wanted a military lawyer, you went out there and found some bargain basement, a civilian lawyer who would take your case for as little as possible. Do not do this. In your case, ask that military lawyer what’s this guy’s reputation.

If the military lawyer says I’ve never heard of him, I don’t know what he’s done, that should be assigned for you that that guy might not have tried too many courts-martial in that area, that jurisdiction, as these guys are interconnected. And so make sure I mean, the bottom line is you got to do your homework and make sure that you get a guy who’s experienced because getting an inexperienced civilian defense counsel is almost as bad as getting just sticking with the detailed defense counsel,

Michael Waddington, Court-martial lawyer 17:10
I noticed that there are many of these, these bottom-feeder attorneys, that aren’t that good. I have no experience, which it looks like they went and cut, cut, and pasted a bunch of CNN logos on their website, ABC News logo on the website. And then I looked the lawyer up. I’m like, all right, this guy claims he was featured on CNN, he gives very little if any detail, there are a few guys like this out there about what they did and how they ended up on CNN, allegedly. And there’s no, you go to the CNN website, and then you put it in, and their name doesn’t pop up. So they’re lying about their case being covered on CNN.

If you’re actually in the media and have a reputation for being a hard-hitting attorney, it’s not hard to verify. You just Google the person’s name. Look at the history, Crawford cross-reference it, and you’ll know whether or not someone was actually on CNN or not. And frankly, if they claim to be on CNN, and ABC News and all this stuff, they should have a link to the big article where their name appears or some relation to the case they were involved in. And I just can’t find many lawyers out there who say that I’ve been featured on CNN, New York Times, and things like that.

Noel Tipon, Attorney at Law 18:21
You can’t just take at face value everything that’s on somebody’s website because it’s their website. They get to control it. They get to put on whatever they want. What you need to do if you’re looking for a civilian defense counsel, you got to look at third-party credibility indicators. Don’t just go to the guy’s website. I mean, a lot of this can be done just by querying the military defense lawyer. You’re talking to just the guy across the table, from you, when you throw your scenario out there. What’s their reaction?

How do they try and address the issue you’re facing in the case you’re talking about? If there’s a lot of hemming and hawing and I got to look that up, or that’s interesting, maybe I could figure that out. You need a guy who isn’t going to try and make promises that they can’t keep. Oh, I’ll get you out of this. I can. I can make sure I can hook you up that guy who’s making that prediction. You got to be a little bit, you know, skeptical of a guy trying to make you a prediction right off the bat off the first interview. Because that guy always try and do is get you in the door, get you to pay him and then and then maybe, later on, read the investigation and that’s something to be wary of like,

Michael Waddington, Attorney at Law 19:38
I appreciate your comments, and I think that we made some good points that can help consumers or people facing possible court-martial administration. Choose the best lawyer for their case. If you have any questions, feel free to call either one of our offices and speak with one of our experienced court-martial defense attorneys.

Noel Tipon, Attorney at Law 19:58
I appreciate you having me on another audition. Mike, I look forward to talking with you again. Sam here. Take care.

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