No. 3: Litigate Like We Fight

The 21st Theater Sustainment Command performs a ROC drill to prepare for a major exercise. (Credit: PFC Katelyn Myers)

No. 3

Litigate Like We Fight

Using Joint Planning Doctrine to Succeed at Your Next Court-Martial

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By Lieutenant Colonel Shaun B. Lister & Major C. Cal Walters

There are no secrets to success. It is the result of preparation, hard work, and learning from failure.1

The execution of a court-martial is analogous to a complex military operation. Inexperienced counsel often lack an adequate planning system to visualize, organize, and execute all critical tasks for each court-martial, resulting in trial delays and frustrated stakeholders. Moreover, military justice leaders often struggle to communicate their knowledge and experience in a transferable way to new counsel. Key elements of joint planning doctrine—operational art,2 operational design,3 and Red Teaming4—used by commanders and their staffs for planning and executing complex operations can provide a common planning framework and uniform terminology for military justice leaders to use in training new counsel. If adopted more broadly, these elements can also create consistency between the institutional training elements in the Judge Advocate General’s (JAG) Corps.5

Assume you are a military justice leader, and one of your counsel is Captain (CPT) John Smith. Captain Smith is three months into his time as a trial counsel (TC) and one month away from his first contested court-martial. He believes he can prove the case from an evidentiary standpoint; but he and his trial team have devoted so much time to gathering evidence and preparing the alleged victim that they are falling behind on other government responsibilities. Captain Smith realizes he forgot to send subpoenas to several witnesses6 and forgot to request criminal background checks on all government witnesses.7 To make matters worse, CPT Smith also failed to subpoena documents he agreed to produce in discovery.8 Like many new TCs, CPT Smith wants to succeed, but disorganization and inadequate planning have left him overwhelmed and unprepared for trial.9 In joint planning terminology, CPT Smith failed to manage all “lines of effort” (LOEs)10 to achieve the government’s “desired end state.”11 Unable to resolve these issues with only a few weeks before trial, the military judge grants defense’s motion for a continuance.12

As a military justice leader, it is often difficult to help CPT Smith see everything he does not know. This article demonstrates how the use of joint planning doctrine can help military justice leaders quickly fill the gap between what inexperienced TCs know and what they need to know to serve their client. Unlike the many checklists and products that already exist in the JAG Corps, this article offers a framework that can help leaders train their counsel on all aspects of the court-martial process at once. In the end, counsel will be able to see how all aspects of court-martial planning fit together to produce success at trial.

Court-Martial Application of Joint Planning Doctrine

Assemble the Planning Team

The first step in the court-martial planning process is to assemble the planning team. It is recommended that this happen before preferral. Since face-to-face communication is most effective, the best practice is to do all significant planning sessions and in-progress reviews (IPRs) in person.13 At a minimum, the TC, assistant TC, paralegal specialist supporting the court-martial, and key Civilian support staff should be present.14 The TC can set the conditions for collaborative and efficient planning by reserving a conference room free of distractions, providing resources to facilitate collaborative planning (e.g., a white board with markers), and providing all members of the team with a roadmap for each planning session and IPR.

Determine Current State and Desired End State

Once all members of the trial team are in the same room and ready to conduct planning, the next step is to identify the case’s current state.15 This is really a question of where the case is procedurally (and substantively, though this is less important). Have charges already been preferred? Is the case still in the investigation stage? Determining the case’s current state is not the time to dig into the weeds about the many items the trial team needs to accomplish. That will come soon enough. For example, the case’s current state may be “we are pending preferral and we see this as a case we should take to a court-martial” or “we are post-Article 32 preliminary hearing and we think this case should be referred to a general court-martial as long as the victim continues to participate.” It is that simple.

The next step in the planning process is to identify the government’s desired end state.16 Visualizing the desired end state early in the planning process and remaining end-state oriented17 create a foundation for meaningful backward planning.18 For a contested court-martial, the government’s desired end state is likely to be prompt,19 prepared,20 persuasive,21 and “exclude every fair and reasonable hypothesis except that of guilt.”22 Some may say the government’s desired end state is to obtain a conviction, but the end state should be something the government can fully control and complies with the pursuit of justice. The government’s desired end state will likely differ for a contested court-martial and a guilty plea.23 The TC and other trial team members should constantly compare the desired end state to the current state of the case to maintain a clear picture of the work required to achieve this end state.24

Have charges already been preferred? Is the case still in the investigation stage? Determining the case’s current state is not the time to dig into the weeds about the many items the trial team needs to accomplish. That will come soon enough.

Define Objectives

The next step in the planning process is to identify objectives that will lead to the government’s desired end state.25 To arrive at the end state outlined above, this article argues there are six critical, consistent objectives the government must achieve. First, the government must prove each element of each offense.26 Second, the government should optimize communication throughout the court-martial process with all key stakeholders, such as commanders and victims. Third, the government must successfully manage all trial logistics.27 Fourth, the government must meet all discovery obligations.28 Fifth, the government must fully utilize pre-trial motions to resolve all pre-trial issues.29 Finally, the government must educate and persuade the fact finder.30 To a new TC, these objectives may seem a bit overwhelming, but each of these areas is critical to the government’s success at trial. With thorough planning and developing a shared understanding among the trial team, even an inexperienced TC can achieve success using this planning framework.

Identify Lines of Effort and Tasks

Once the government has established objectives to achieve its desired end state, the next planning step is to visualize LOEs and tasks that will help the government achieve these objectives.31 A LOE “links multiple tasks . . . using the logic of purpose—cause and effect—to focus efforts” toward objectives and the desired end state.32 Objectives are the goals, and LOEs are the separate systems that allow the government to achieve the goals. If our hypothetical CPT Smith had been able to visualize each LOE and each critical task required to achieve success at trial, he may have been able to avoid a trial delay. Like joint commanders and their staffs, TCs can utilize LOEs to organize and visualize the government’s many areas of responsibility. One way to do this in practice is to make each objective its own LOE. To illustrate this point, the six objectives described above could have corresponding LOEs: (1) evidentiary proof, (2) stakeholder communication, (3) logistics, (4) discovery, (5) motions, and (6) persuasive presentation.33

Developing LOEs helps the trial team visualize and develop broad solutions for mission accomplishment and creates a shared understanding in a complex environment.34 The purpose of operational art and design is to produce an “operational approach,” allowing the commander to translate broad strategies into an executable plan.35 For trial planning, the operational approach could be a list of specific tasks with clear deadlines under each LOE.36 Using the six LOEs outlined above, the rest of this article illustrates how a trial team can develop an executable plan within each LOE to achieve the government’s desired end state.

LOE 1: Evidentiary Proof

The first LOE any TC must manage is evidentiary proof. If the government fails to admit evidence on any element of any offense, the military judge will find the accused not guilty of that offense under Rule for Courts-Martial (RCM) 917.37 However, surviving an RCM 917 motion is the minimum standard for the government. Ultimately, the government’s goal should be to prove each element of each offense beyond a reasonable doubt and negate any defenses properly raised by the defense.38 Meeting this goal requires thorough preparation, detailed follow-through, and mastery of the facts and the law.

Many military justice leaders create safeguards—such as requiring a prosecution memorandum or elements proof matrix—to ensure TCs are thorough in their case preparation. These safeguards serve a useful purpose, especially at the pre-preferral stage, but much more is required of the TC to prove the case at trial. For example, consider the specific tasks required to prepare one offense of larceny in the hypothetical trial of United States v. Private (PVT) Sam Snead.

Assume the government charged PVT Snead with larceny for wrongfully taking Specialist (SPC) James Doe’s 2018 Toyota Camry (valued above $1,000) on 1 January 2019 at or near Fort Bragg, North Carolina. Officer White, a civilian police officer in Raleigh, North Carolina, pulled PVT Snead over driving the 2018 Camry on 10 January 2019. Specialist Doe reported the vehicle stolen on 1 January after it went missing from the parking lot outside his barracks room. Specialist Doe purchased the vehicle from the Toyota dealership in Fayetteville, North Carolina, on 20 December 2018. After the arrest on 10 January, Special Agent (SA) Cleveland from Fort Bragg Criminal Investigation Command (CID) conducted a lawful search of PVT Snead’s cell phone that revealed text messages of PVT Snead attempting to sell the Toyota Camry to various used car dealerships in the Raleigh area.

To prove the offense of larceny, the government must admit evidence for each of the following elements:

(1) On or about 1 January 2019; (2) at or near Fort Bragg, North Carolina; (3) PVT Snead wrongfully took a 2018 Toyota Camry from the possession of SPC Doe; (4) that the property belonged to SPC Doe; (5) that the property was of a value of over $1,000; and (6) that the taking by PVT Snead was with the intent to permanently deprive SPC Doe of the use and benefit of the property.39

With these facts and elements in mind, the next step requires the trial team to make an executable plan to prove each element by creating a thorough list of all tasks the trial team must complete. Then, for each task, the trial team should set a deadline for completion of the task, designate a member of the trial team to be responsible for the task, and ensure all trial team members understand the plan of execution.

To prove that the theft occurred on or about 1 January 2019, the government will likely rely on the in-court testimony of SPC Doe. Thus, task #1 for this LOE could be preparing SPC Doe to explain the dates associated with the theft. He can likely testify that he parked the vehicle near his barracks on 1 January and that he noticed it was missing later that day. He also went to the Fort Bragg Military Police station that same day to report it missing. To prove that the theft occurred at or near Fort Bragg, North Carolina, the government will likely again rely on the testimony of SPC Doe. Therefore, task #2 could be for a trial team member to prepare SPC Doe to discuss where he parked the vehicle when he discovered it was missing.

To prove that PVT Snead took the 2018 Camry from SPC Doe, the government will likely rely on the testimony of Officer White because he pulled PVT Snead over driving the stolen vehicle after SPC Doe reported it missing. Accordingly, task #3 could be for a trial team member to prepare Officer White to testify about pulling PVT Snead over on 10 January 2019. Since Officer White took photographs of PVT Snead with the stolen vehicle, and was wearing a body camera that evening, task #4 could be for a trial team member to obtain a photograph of the vehicle and PVT Snead from that evening. Task #5 might be to obtain a copy of the body camera footage.40

To prove that the 2018 Toyota Camry belonged to SPC Doe, the government will likely once again rely on testimony from SPC Doe, proof of purchase information from the Toyota dealership in Fayetteville, North Carolina, and title information from the State of North Carolina. Thus, task #6 could be to ensure SPC Doe is prepared to testify about his ownership of the 2018 Camry; task #7 may be obtaining a copy of the purchase information from the Toyota dealership in Fayetteville, North Carolina; and, task #8 could be retrieving a copy of the title information in SPC Doe’s name from the State of North Carolina.

Note that tasks #7 and #8 involve documents the TC intends to offer into evidence at trial. Thus, the government must be prepared to overcome potential hearsay41 and authentication42 objections to the admission of both documents. The vehicle purchase information from the Toyota dealership likely qualifies as a business record under Military Rule of Evidence (MRE) 803(6).43 Therefore, the government may overcome a hearsay objection if it has a records custodian from the Toyota dealership testify at trial or produce a certification that complies with MRE 902(11).44 Because getting the certification document is far more efficient than having a witness appear in person, obtaining the certification document that complies with MRE 803(6) and MRE 902(11) could become another task for the trial team—task #9. The vehicle title information may also qualify as a business record under MRE 803(6), as a public record under MRE 803(8),45 or as a record or statement that affects an interest in property under MRE 803(14)46 and MRE 803(15).47 Regardless of the avenue chosen, for planning purposes, task #10 could be for a trial team member to be prepared to authenticate the document.

Members of the Alabama National Guard conduct a mock court-martial. (Credit: SSG Jeremy Dunkle)

Proving that the vehicle is of a value more than $1,000 may be an item worthy of judicial notice, but judicial notice is something the trial team must request from the judge in advance of trial in accordance with the pretrial order.48 Other options for proving this element could be calling an expert witness to testify to the value of a 2018 Toyota Camry, introducing a market report from a source such as Kelly Blue Book under MRE 803(11),49 or relying on the purchase agreement from tasks #7 and #9. Proving this element could be task #11.

Finally, to prove that PVT Snead had the intent to permanently deprive SPC Doe of the vehicle, the TC will likely want to call SA Cleveland to testify about the text messages found on PVT Snead’s phone. Evidence to support this intent element could also come from Officer White’s testimony about finding PVT Snead driving the vehicle in the Raleigh area. Therefore, proving this element could produce several tasks. Because the government intends to offer the text messages from PVT Snead’s phone against him at trial, task #12 could be for a trial team member to include text messages as a category in the government’s Section III disclosures.50 Task #13 could be that a trial team member prepares SA Cleveland to testify about the text messages he found during a digital forensic examination. Because SA Cleveland will have to be qualified as an expert, task #14 might be obtaining his curriculum vitae (CV) and preparing him to draft his notice of expert testimony to provide to the court and defense counsel in accordance with the pretrial order. Finally, task #15 might be for a trial team member to prepare Officer White to testify about his observations of PVT Snead when he pulled PVT Snead over in SPC Doe’s vehicle.

Although more tasks may be necessary to prove each element beyond a reasonable doubt, one can see from this simple exercise how the trial team can utilize this systematic approach to ensure the government is prepared to admit evidence for each element of the offense. A prudent TC will also use this method to prepare to negate any relevant defenses. The next step is to ensure a trial team member is responsible for each task and set internal team deadlines.

When deciding which member of the team is responsible for each task, the best practice is to group tasks into a logical order of execution. For example, tasks #1, #2, and #6 all involve testimony by SPC Doe. Tasks #3, #4, #5, and #15 all involve testimony or evidence from Officer White. Tasks #7-11 involve obtaining documents from outside agencies and overcoming hearsay and authentication objections. Tasks #13 and #14 involve SA Cleveland, and task #12 involves Section III disclosures.51 Thus, it might make sense to give the first set of tasks to the trial team member planning to conduct the direct examination of SPC Doe and the second set to the trial team member conducting the direct examination of Officer White. Ultimately, the goal should be that a member of the trial team is responsible for each task and that all trial team members have a shared understanding of the distribution of work and the deadline for each task.

After creating an executable plan for LOE 1, the trial team could bring in a Red Team52 to look at the plan from a critical, objective point of view. A Red Team can help the trial team “think critically and creatively; see things from varying perspectives . . . [and] avoid false mind-sets, biases, or group thinking.”53 It is far better to have members of the government team question false assumptions, identify weaknesses, and look at the government plan objectively than to let the defense counsel be the first to do so at trial. Red Teaming does not need to be overly complicated. The trial team can simply invite members of the government not intimately involved in preparation of the case to hear their trial strategy and provide constructive feedback. Under the Military Justice Redesign, members of the other litigation team could serve as the Red Team.54 The most value will likely come from asking some of the most experienced litigators to be part of the Red Team. The best practice is to bring in a Red Team during each critical stage of court-martial preparation. For those who may think this type of detailed, systematic planning is overkill, consider that this is just one LOE for one offense. If the trial team does not plan to this level of detail, even seasoned attorneys can overlook critical details when the stress and pressure of trial preparation take over.55

If something goes wrong with logistics, it often results in trial delays, frustrated stakeholders, and diminished good order and discipline. As one former military judge observed, “attention to detail should be the trial advocate’s obsession. If counsel let down their guard, something will go wrong.”

LOE 2: Stakeholder Communication

Next, to meet all the government’s objectives and ultimately achieve the government’s desired end state, the government must maintain clear, consistent, and meaningful communication with all key stakeholders in the court-martial process. The most critical stakeholders in the military justice system are commanders charged with maintaining good order and discipline.56 Despite proposals for reform, the commanders maintain the authority and responsibility for discipline.57 Accordingly, TCs and Military Justice Advisors (MJAs) have a responsibility to ensure commanders have the information required to make meaningful charging decisions,58 give recommendations on disposition,59 make decisions on referring a case to courts-martial,60 and make decisions on plea negotiations.61 Government counsel should also keep commanders informed on the procedural status of their pending cases.

In addition to maintaining effective communication with commanders, TCs must also maintain meaningful communication with alleged crime victims and, when applicable, their Special Victim’s Counsel. Maintaining an open line of communication with a crime victim makes tactical sense, but it might also be required by law62 or regulation.63 As with the other LOEs, the trial team should create tasks for each engagement with key stakeholders, designate one trial team member to be responsible for each task, set deadlines for task completion, and schedule IPRs to monitor the progress of each task and continue to refine the plan.64

LOE 3: Logistics

In addition to evidentiary proof and stakeholder communication, one of the government’s most critical―and often most overlooked―LOEs is trial logistics.65 If something goes wrong with logistics, it often results in trial delays, frustrated stakeholders, and diminished good order and discipline. As one former military judge observed, “attention to detail should be the trial advocate’s obsession. If counsel let down their guard, something will go wrong.”66 When it comes to trial logistics, government counsel would be wise to train their paralegals to support this LOE to the maximum extent possible. Once paralegals have received adequate training, trial counsel should empower them and create effective feedback loops to ensure adequate attention to detail. Managing logistics also requires over-communication and detailed coordination with civilian support staff (e.g., the victim witness liaison) and the accused’s chain of command.

Once the government grants production of witnesses, it has the responsibility to ensure their presence at trial.67 It is the TC’s responsibility, with the assistance of the trial team, to subpoena all witnesses,68 schedule witness travel, book hotel accommodations, and organize reimbursements for witnesses. This means the government must obtain critical information from each witness―such as their mailing address, best contact information, social security number, and bank account information―at the first opportunity. Sometimes witnesses are hesitant to give over personal information until trust and credibility have been established. Nonetheless, the best government teams know exactly what information they need from all witnesses and are prepared to obtain it as early as possible. They also have an effective tracking system for organizing and sharing relevant information with key stakeholders, such as the victim witness liaison.69

The government should also have a detailed tracking system to ensure a team member mails each non-military witness a subpoena and that each witness affirmatively acknowledges the subpoena. The government must keep track of when each witness arrives, where they are staying, and when they are expected to arrive at the courtroom. The government is also responsible for arranging rental cars or ensuring witnesses have transportation from the airport to their hotel and from their hotel to trial. The government should have a clear timeline for preparing witnesses after they arrive and getting them familiar with the location and layout of the courtroom, and witnesses should be aware of proper courtroom attire.

The government must also manage the logistics of expert witnesses and consultants. In addition to processing defense expert requests to the convening authority, government counsel must also litigate motions to compel expert assistance and coordinate to ensure they are properly contracted when approved. This typically requires coordination with the legal administrator and the Division or Corps G8 office.

The government is also responsible for making sure all panel members are aware of the court-martial and present for trial.70 The trial counsel must ensure all panel member information is correct, taking into account excusals and alternate members. This includes ensuring the court and defense have the correct court-martial convening orders and vice orders. The government must provide the court and defense with all panel members’ enlisted record briefs, officer record briefs, and questionnaires. Additionally, the government is responsible for drafting a findings and sentencing worksheet, a diagram of where panel members will sit in the courtroom, putting together panel binders, panel nameplates, courtroom security, and ensuring the technology works in the courtroom. Government counsel must also prepare a trial script that covers in detail all stages of the trial, including areas where the government must respond to questions from the judge such as whether the information on the charge sheet is correct. The government must also coordinate with the accused’s unit to have proper escorts and bailiffs; confirm the accused’s uniform is correct and ready for trial; and, in the event the sentence includes confinement, ensure that the accused’s confinement packing list is completed.71

To achieve success for this LOE, create specific tasks for each government responsibility, identify one person on the team to be responsible for the execution of each task, and set clear deadlines. Finally, the trial team should schedule IPRs to monitor the progress of each task and ensure no gaps exist in execution.72

LOE 4: Discovery

For new TCs and experienced litigators, discovery can be stressful, cumbersome, and lead to consequential problems if mismanaged.73 If the government gets discovery wrong, it can cause a delay or an overturned conviction, or it can lose ethical credibility.74 Thus, discovery requires a systematic, thorough approach to achieve the government’s desired end state. Rule for Courts-Martial 701 discusses discovery obligations,75 and RCM 703 deals with production of evidence and witnesses.76 These rules outline many of the critical discovery tasks for the trial team, but they are not all-inclusive.

As a trial team, developing a systematic method of tracking discovery early is essential for success. While many offices use Microsoft Excel to track items of discovery,77 make sure the entire team agrees to use one tracking method and that each member of the trial team agrees to capture all items of discovery and production using this method. Developing an agreed upon method of tracking discovery could be task #1. In addition to having a fail-safe method of tracking discovery, the trial team should utilize Bates numbering78 (or something equally effective) to track each page the government turns over to defense. Although Bates numbering will be a continual obligation until trial, the trial team could make this task #2 to create accountability between all trial team members.

The government must promptly disclose all evidence that reasonably tends to negate guilt, reduce the degree of guilt, reduce punishment, or adversely affect the credibility of any prosecution witness or evidence.79 The trial team could make this task #3 and ensure all members of the team understand the significance and ongoing nature of this obligation. While examining this task, the trial team may come up with other tasks or subtasks that flow out of this obligation.80

Additionally, the trial team can create tasks based on where they must search for unfavorable information. For example, task #4 could be to search all law enforcement files involved in the case for information favorable to defense, including the files of CID and civilian law enforcement agencies involved in the criminal investigation. The government has an affirmative due diligence requirement to search the entire investigation file for favorable information.81 The trial team should also look for derogatory information on all government witnesses. Therefore, task #5 could be to review the military personnel files of all government witnesses for derogatory information. This task includes their official files and their local personnel files. Similarly, the trial team could make task #6 conducting criminal record checks on all government witnesses through the National Crime Information Center (NCIC).

The trial team will also need to make Section III disclosures to defense prior to arraignment, which could be task #7.82 This includes grants of immunity,83 statements by the accused,84 evidence seized from the accused,85 and identifications.86 The trial team could also create tasks for all other mandatory disclosures by the government. For example, at preferral, the government is obligated to disclose the charges and any document accompanying the charges.87 The government must also disclose any order directing an Article 32 preliminary hearing,88 the report of the Article 32 preliminary hearing,89 and (at referral) all allied papers.90 Similarly, the government must disclose any prior convictions of the accused it may offer on the merits, including impeachment,91 similar sex assault or child molestation crimes the government intends to offer,92 notice of intent to employ an expert witness at government expense,93 the names and contact information of government witnesses,94 and testing that may consume the only available samples of evidence.95

If the government receives a defense discovery request, the trial team can create separate tasks based on its responses to the discovery request. Some common disclosures triggered by a defense request include documents and tangible objects,96 reports,97 sentencing information,98 uncharged misconduct,99 and witness statements.100 The trial team can also create separate tasks for each production request granted by the government under RCM 703.101 Because granting a request for production under RCM 703 often requires the issuance of a subpoena or warrant and coordination with an outside organization, the trial team should ensure it carefully accounts for these tasks and use backward planning to meet all required deadlines. As with the previous LOEs, the trial team should finalize the planning for this LOE by assigning a responsible individual to each task and setting clear deadlines based on the Rules and the pretrial order.

LOE 5: Motions

Effective pretrial motions are critical to the government’s success at trial.102 Well-drafted and well-researched pretrial motions can quickly establish credibility with the military judge.103 As former trial and appellate judge Colonel James W. Herring, Jr. explains, “Credibility is the most important character attribute a trial attorney can have. Without it, a trial attorney cannot accomplish his two most important missions: educate and persuade the fact finder.”104 When TCs prepare in advance and set aside sufficient time to identify key legal issues, research those issues, write, and rewrite, they are likely to make a great first impression with the military judge. However, if you fail to plan and “[s]ubmit and litigate a motion with only half-hearted effort” you will “reap the credibility and outcome consistent with the effort you put into that motion.”105

As the trial team begins planning for this critical LOE, consider the steps required for successful execution of pretrial motions and pretrial litigation. First, the trial team should spend time brainstorming key legal issues ripe for affirmative government motions or issues that will likely lead to defense motions and require a government response. Common issues for pretrial litigation are motions to suppress evidence, motions to suppress an accused’s confession, motions under MREs 412, 413, 414, and 513, motions to pre-admit evidence, and motions to compel production of witnesses and evidence.106 As the trial team conducts this brainstorming session, they can make a list of each affirmative motion the government plans to file and each issue that might require a government response.107

After the trial team identifies all critical legal issues ripe for litigation, the next steps are research108 and writing. Because great writing takes time,109 the trial team should backward plan from the motions deadline to have time to research, write, edit, and receive feedback from co-counsel and supervisors. Waiting until the last minute to draft motions could result in a poor product, loss of credibility, or failure to win the day on a case dispositive issue.110 The government should avoid the common mistake of relying too heavily on a “brief bank” to draft motions.111 Instead, the trial team should create a task for the writing of each affirmative government motion and each government response to anticipated defense motions. The government can anticipate the motions defense will likely file, which means the trial team can begin researching and outlining possible responses in advance of the motions deadline. As with the other LOEs, the government should ensure someone on the trial team is responsible for each task and, based on the Rules or the pretrial order, assign deadlines for when the task needs to be completed.112

If the government receives a defense discovery request, the trial team can create separate tasks based on its responses to the discovery request.

LOE 6: Persuasive Presentation

In addition to presenting admissible evidence on each element of each offense, TCs must educate and persuade the fact finder to achieve the government’s desired end state.113 Good advocates identify a persuasive theme and theory early and then artfully weave their theme and theory into all key stages of the trial, from voir dire to closing arguments. Persuading the fact finder requires preparation, thoroughness, mastery of the facts and the law, and credibility as an advocate.114 Accordingly, the government should devote significant time, effort, and attention to persuading the fact finder with the art and science of persuasion.115

To develop tasks for this LOE, the trial team should take an honest look at the good and bad facts of the case and examine what story the government needs to tell the factfinder in closing argument to be most persuasive. The government’s theme should help the fact finder make sense of the facts of the case.116 When used properly from the beginning of trial, the government uses the theme from its first interaction with the fact finder and builds until it confirms the theme in closing argument.117 Finding a meaningful theme and creating truly persuasive presentations from start to finish takes significant time, commitment to rehearsals, and significant collaboration between all members of the trial team.

With task development, the trial team can translate these abstract concepts into an executable plan. Task #1 could be to collaborate and put in writing the government’s theory of the case, and task #2 might be to develop a compelling theme. Task #3 could be for a trial team member to outline the closing argument, while task #4 may be to write out questions for voir dire. Task #5 could then be to write out direct examination questions for each witness, and task #6 might be to write out cross-examination questions for each defense witness, including the accused.118 Task #7 could be to write out the opening statement. Task #8 could be for a team member to create audio-visual aids to assist in the presentation of evidence. Tasks #9-12 could be to conduct rehearsals on critical tasks with the Red Team—such as the government’s closing argument, voir dire, opening statement, and cross-examination of the accused.119 Task #13 might be to prepare the alleged victim (if there is an alleged victim) for direct examination and have a member of the government conduct a mock cross-examination of them. This is not an exhaustive list of tasks under this LOE, but each task requires individual preparation and meaningful trial team collaboration to create a compelling, cohesive presentation.

As the trial team makes a list of tasks for this LOE, the team should ensure a trial team member has responsibility for each task. Some key factors to consider when assigning tasks for this LOE are the experience level of the counsel, unique talents of the counsel, and rapport between the counsel and certain witnesses.120 Regardless of how the trial team decides to distribute tasks, this planning step is critical to moving from an abstract list of tasks to an executable plan with responsibilities placed on each member of the trial team. To set the government up for success on each task, utilize backward planning121 to set meaningful deadlines. Be mindful of the significant time investment required to create persuasive presentations,122 and do not rely on having free time in the weeks preceding trial.123

The danger of confirmation bias, in which law enforcement investigators and prosecutors reach conclusions based on first impressions and then seek evidence to prove their conclusion, exists in every case and risks missing important evidence. Using the Analysis of Competing Hypotheses mitigates this effect by preventing snap judgments.

Red Team Tools: Applied Critical Thinking

Red Teaming is a capability that allows commanders to fully explore alternatives and test plans.124 Red Teamers use various tools designed to improve decision-making by assisting staffs with the identification of the shortcomings in their plans; they do this by avoiding group think and logical fallacies and through identifying and challenging cognitive biases and assumptions.125 Trial teams can use Red Team tools to test their litigation plans and mitigate the potential for currently unknown events to derail their cases. Two Red Team tools that are particularly useful for trial preparation are the Analysis of Competing Hypotheses126 and Premortem Analysis.127

An Analysis of Competing Hypotheses is useful in avoiding logical fallacies such as confirmation bias.128 Confirmation bias is the tendency to seek or interpret information or evidence consistent with existing beliefs.129 The danger of confirmation bias, in which law enforcement investigators and prosecutors reach conclusions based on first impressions and then seek evidence to prove their conclusion, exists in every case and risks missing important evidence. Using the Analysis of Competing Hypotheses mitigates this effect by preventing snap judgments.

Ideally, counsel would be involved in the early stages of an investigation and use the Analysis of Competing Hypotheses to assist law enforcement’s scope of the investigation. Trial counsel can also use the Analysis of Competing Hypotheses to assess the strength of evidence, determine charges, and forecast defenses or weaknesses in cases. This Red Team tool is easy to use and forces deliberate assessment of evidence.

At the start of evidence analysis, the team leader (ideally the Special Victim Prosecutor or the General Crimes Prosecutor) leads the litigation team in brainstorming to identify all reasonable hypotheses.130 To encourage divergent thinking, include every member of the trial team—including paralegals. In generating alternate hypotheses, it is important that the team identifies all potential hypotheses of criminal liability in a particular matter as well as hypotheses of non-liability before assessing any individual hypothesis.131 After identifying all of the hypotheses, the group then lists all the evidence relevant to all the hypotheses and “arrays the evidence against each hypothesis.”132 At this point, the goal is to negate hypotheses rather than to prove any hypothesis.133 The simplest way to do this is to create a matrix with the hypotheses across the top, listing evidence related to each hypothesis in a column underneath.134 Once the team identifies sufficient evidence to negate a hypothesis, the team leader removes that hypothesis from consideration.135 Through deliberate evidence analysis and removal of disproved hypotheses the trial team will be able to identify gaps in evidence, weaknesses in their case, and the most appropriate charges to assert.

A second useful Red Team tool is Premortem Analysis.136 Trial teams should use Premortem Analysis after they have developed their initial plan and drafted their initial LOEs. The premise of Premortem Analysis is to critically view a plan by imagining that the plan failed and then identifying all the reasons the plan could potentially fail.137 Once the team identifies these potential failure points, the team places them along their LOEs and creates tasks designed to mitigate or eliminate the problem.138

Like Analysis of Competing Hypotheses, it is important to include the entire litigation team. Incorporating ideas generated by paralegals supporting the case, victim witness liaisons, and the trial attorneys increases the likelihood of capturing all potential problems. For example, the paralegal supporting the case may have a better sense of logistical issues that could derail a court-martial. The victim witness liaison has probably maintained a relationship with an alleged crime victim, or has engaged in regular contact with other witnesses and can inform the trial counsel of witness issues that could cause the court-martial to fail. Each member of the team participates equally in the steps of Premortem Analysis.

There are five steps to Premortem Analysis.139 The first step is to ensure each member of the team has at least a basic understanding of the plan.140 In the second step, team members imagine catastrophic failure of the plan.141 The cause of the failure could be anything: a discovery violation that causes an Article 10 issue; failure to properly contract a defense expert witness that leads to a delay in the trial and the resulting discontinuation of victim cooperation in the court-martial; or a lack of child care for a key non-local witness who cannot testify unless their child travels with them. The possibilities are almost unlimited. The second step requires each member of the team to write down, individually, as many ideas as possible of things that could cause the plan to fail.142 Team members should include ideas that apply to any LOE. For example, the paralegal may raise a point that relates to the persuasive presentation LOE. The only rule at this point is that the more ideas generated, the better.143 The fourth step requires consolidation of the ideas.144 Once each team member generates ideas individually, the team leader consolidates by going around the room, having each team member give one idea at a time, and writing the ideas on a white board for everyone to see and contemplate.145 It is important to go one idea at a time to allow opportunity for each team member to assess the idea and determine if that idea generates additional ideas that were not initially thought of. The fifth step is to revisit the plan and place failure points along the LOEs and assign tasks to mitigate the problems.146 Last, it is important for teams to regularly review the LOEs to ensure tasks are being completed, ensure the plan remains good, and to identify any other problems that may have occurred.

Premortem Analysis is useful to avoid overconfidence in a plan, and is particularly useful with inexperienced teams.147 It provides a methodical framework that, when the ability to react to the problem is either limited or non-existent, allows trial teams to avoid surprises late in the litigation. Although it requires effort on the front end, use of deliberate processes like Premortem Analysis should, in the end, relieve stress and create unified, committed teams whose members are all informed and invested in both the process and the outcome of the case.

Although it requires effort on the front end, use of deliberate processes like Premortem Analysis should, in the end, relieve stress and create unified, committed teams whose members are all informed and invested in both the process and the outcome of the case.

Conclusion

Imagine if CPT Smith had utilized these elements of joint planning and Red Teaming for his upcoming trial. From the beginning of trial preparation, CPT Smith could have visualized all the LOEs to achieve success instead of narrowly focusing on just a few key tasks. For each LOE, CPT Smith could have created a detailed list of tasks, responsibilities, and deadlines to avoid failure and delay. He could have also utilized Red Teaming to identify weaknesses for any of the critical LOEs. Because of all that is required of government counsel in the military justice system, ad hoc approaches to planning and execution leave too many critical tasks to chance. The elements of joint planning illustrated in this article provide military justice leaders and practitioners a systematic framework for court-martial planning that will help new TCs find clarity in a complex military justice environment, just as they provide joint commanders and their staffs with clarity in complex operational environments around the world. TAL

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LTC Lister is the Chief of Military Justice for III Corps and Fort Hood at Fort Hood, Texas.

MAJ Walters is the Chief of Military Justice for the 82d Airborne Division at Fort Bragg, North Carolina.

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Notes

1. Hill Harper, Letters to a Younger Brother: Manifest Your Destiny 44 (2006) (quoting General Colin Powell).

2. Joint Chiefs of Staff, Joint Pub. 5-0, Joint Planning I-3 (1 Dec. 2020) [hereinafter JP 5-0]. “Operational art is the cognitive approach by commanders and staffs—supported by their skill, knowledge, experience, creativity, and judgment—to develop strategies, campaigns, and operations to organize and employ military forces by integrating ends, ways, means, and evaluating risks.” Id. at I-3.

3. Operational design is the analytical “framework that underpins a campaign or operation and its subsequent execution.” Id. at IV-1.

4. A Red Team is “an independent group that challenges an organization to improve its effectiveness.” Id. at III-76. A Red Team can help commanders and their staffs “think critically and creatively; see things from varying perspectives . . . [and] avoid false mind-sets, biases, or group thinking.” Id.

5. The institutional elements are in reference to the Trial Counsel Assistance Program, Defense Counsel Assistance Program, The Judge Advocate General’s Legal Center and School, and—now—the Advocacy Center at Fort Belvoir, Virginia.

6. See Manual for Courts-Martial, United States, R.C.M. 502(d)(4) discussion (E) (2019) [hereinafter MCM] (describing the trial counsel’s (TC’s) responsibility to ensure all witnesses are present for trial).

7. See MCM, supra note 6, R.C.M. 701(a)(6) discussion (describing the TC’s obligation to exercise due diligence in discovering information favorable to defense); United States v. Green, 37 M.J. 88, 89 (C.M.A. 1993) (discussing the government’s obligation to disclose a witness’s Article 15 as impeachment evidence).

8. See MCM, supra note 6, R.C.M. 703(e) (outlining the production responsibilities of the government).

9. Colonel Jeffery R. Nance, A View from the Bench: So, You Want to Be a Litigator?, Army Law., Nov. 2009, at 48, 48-52 (emphasizing the importance of preparation and thoroughness to achieve success at trial).

10. See JP 5-0, supra note 2, at GL-11 (defining line of effort (LOE) as “using the purpose (cause and effect) to focus efforts toward establishing operational and strategic conditions by linking multiple tasks and missions”).

11. See id. at IV-21 (defining military end state as “the set of required conditions that defines achievement of all military objectives”).

12. See MCM, supra note 6, R.C.M. 906(b)(1) discussion (“The military judge should, upon a showing of reasonable cause, grant a continuance to any party for as long and as often as is just.”).

13. See Brigadier General Charles N. Pede, Communication is the Key—Tips for the Judge Advocate, Staff Officer and Leader, Army Law., June 2016, at 4, 5 (emphasizing the importance of face-to-face communication); JP 5-0, supra note 2, at I-5.

14. The chief of military justice, general crimes prosecutor, or special victim prosecutor should be present at the initial planning meeting to ensure the case starts on the right track. The chief of justice should check on the status of each case on a regular basis.

15. One of the first questions a commander may ask under operational art and design is: what is the current state of the operational environment? See JP 5-0, supra note 2, at IV-6.

16. See id. at I-19 to -20 (“A military end state describes conditions that define mission success.”).

17. A fundamental principle of joint planning is to remain focused on the objective and desired end state. See id. at I-5.

18. Nance, supra note 9, at 48 (recommending backward planning for court-martial preparation).

19. See Colonel James W. Herring, Jr., A View from the Bench: Make the Routine, Routine, Army Law., Aug. 2014, at 41, 42 (describing the importance of meeting every suspense as a TC).

20. Nance, supra note 9, at 48 (emphasizing the importance of preparation).

21. See Lieutenant Colonel Jacob D. Bashore, A View from the Bench: Maximizing the Effect of Your Motions Practice, Army Law., Jan. 2018, at 3, 3 (stating the two most important missions of the trial attorney are to educate and persuade the fact finder).

22. U.S. Dep’t of Army, Pam. 27-9, Military Judges’ Benchbook para. 2-5 (29 Feb. 2020) [hereinafter DA Pam. 27-9].

23. This article focuses on preparing for a contested court-martial. A TC who can navigate the complexities and demands of a contested court-martial will be well equipped to plan and execute a guilty plea, a much less complex undertaking in terms of planning and moving parts.

24. See JP 5-0, supra note 2, at III-8. One element of joint planning not covered in this paper is the creation of a problem statement. See id. at IV-14. Commanders and their staffs spend significant time defining the problem and creating a problem statement. Military justice practitioners could incorporate this practice into court-martial planning as Joint Publication 5-0 states, “[d]efining the problem is essential to addressing the problem.” Id. at IV-11.

25. See id. at IV-21 (describing the end state as the achievement of the commander’s objectives).

26. See Major Matthew McDonald, A View from the Bench: “You Don’t Know What You Don’t Know”: Perspectives from a New Trial Judge, Army Law., July 2010, at 38, 39.

27. Lieutenant Colonel Lawrence M. Cuculic, Trial Advocacy—Success Defined by Diligence and Meticulous Preparation, Army Law., Oct. 1997, at 4, 9 (emphasizing the importance of attention to detail in every aspect of trial preparation).

28. Id. at 6-7 (emphasizing the importance of discovery).

29. See generally Bashore, supra note 21.

30. See Bashore, supra note 21 and accompanying text.

31. JP 5-0, supra note 2, at III-30.

32. Id.

33. For an example, see figure “Lines of Effort.”

34. JP 5-0, supra note 2, at IV-30 to -32.

35. Id.

36. Note that the approach recommended here incorporates aspects of the joint planning process (JPP) and operational design. The JPP and operational design are “complementary tools of the overall planning process.” JP 5-0, supra note 2, at III-4.

37. See MCM, supra note 6, R.C.M. 917 (explaining how the military judge, on a motion of the accused or sua sponte shall enter a finding of not guilty if the evidence is insufficient to sustain a conviction); Cuculic, supra note 27, at 9-10 (emphasizing how counsel should track each element of each offense).

38. DA Pam. 27-9, supra note 22, para. 2-5.

39. MCM, supra note 6, pt. IV, ¶ 64.b.(1).

40. This task illustrates how interconnected the LOEs can be. While obtaining a copy of the body camera footage is critical to proving the case, it might also become a task under the Logistics LOE to send a preservation request.

41. MCM, supra note 6, Mil. R. Evid. 802.

42. Id. Mil. R. Evid. 901.

43. Id. Mil. R. Evid. 803(6).

44. Id. Mil. R. Evid. 803(6)(D).

45. Id. Mil. R. Evid. 803(8).

46. Id. Mil. R. Evid. 803(14).

47. Id. Mil. R. Evid. 803(15).

48. Id. Mil. R. Evid. 201. The Rules of Practice allow the judge to use a pretrial order “to establish dates for compliance regarding discovery and notice, sessions, and conferences.” U.S. Army Trial Judiciary, Rules of Practice Before Army Courts-Martial r. 3.2 (1 Jan. 2019).

49. MCM, supra note 6, Mil. R. Evid. 803(11).

50. See id. Mil. R. Evid. 301(d)(2).

51. Note that task #15 could fall under LOE 3 Discovery, but the best practice is to account for a task the first time it comes up to avoid overlooking it later in the planning process in case, for example, LOEs fall off.

52. A Red Team is “an independent group that challenges an organization to improve its effectiveness.” JP 5-0, supra note 2, at III-76. See also Ray Dalio, Principles: Life and Work 134-35 (2017) (“Truth—or, more precisely, an accurate understanding of reality—is the essential foundation for any good outcome.”).

53. JP 5-0, supra note 2, at III-76.

54. The chief of justice should supervise the Red Teaming, but they should keep comments to a minimum to avoid causing bias in the Red Team.

55. Nance, supra note 9, at 48-52 (highlighting how preparation and thoroughness are key characteristics of successful advocates).

56. See generally David A. Schlueter, § ١-٨ The Commander’s Options: Prosecutorial Discretion, in Military Criminal Justice: Practice and Procedure 65 (LEXISNEXIS, 10th ed. 2019) (You can download specific sections of this document; but, if you download the entirety of this document, the page number is 65). See generally, Lindsy Nicole Alleman, Who is in Charge, and Who Should Be? The Disciplinary Role of the Commander in Military Justice Systems, 16 Duke J. Compar. & Int’l L. 169 (2006).

57. See generally, e.g., Major Elizabeth Murphy, The Military Justice Divide: Why Only Crimes and Lawyers Belong in the Court-Martial Process, 220 Mil. L. Rev. 129, 134 (2014); Charles W. Schiesser & Daniel H. Benson, A Proposal to Make Courts-Martial Courts: The Removal of Commanders from Military Justice, 7 Tex. Tech. L. Rev. 559, 560 (1976).

58. MCM, supra note 6, R.C.M. 307(a).

59. Id. R.C.M. 401, R.C.M. 402.

60. Rule for Courts-Martial 601(a) states, “[r]eferral is the order of the convening authority that charges and specifications against an accused will be tried by a specified court-martial.” Id. R.C.M. 601(a).

61. Id. R.C.M. 705.

62. UCMJ art. 6b (2017).

63. U.S. Dep’t of Army, Reg. 27-10, Military Justice para. 17-14 (11 May 2016).

64. It may be helpful to create a checklist, much like those found in all military justice shops, to state the tasks, persons responsible, deadlines, and current statuses. This will assist the stakeholders in identifying tasks and tracking their progress.

65. See MCM, supra note 6, R.C.M. 502(d)(4).

66. See Cuculic, supra note 27, at 9.

67. See MCM, supra note 6, R.C.M. 502(d)(4) discussion (E) (describing the TC’s responsibility to ensure all witnesses are present for trial).

68. Id. R.C.M. 703(e)(2).

69. The victim witness liaison will often use an Invitational Traveler Worksheet to capture critical information needed for booking witness travel through the Defense Travel System.

70. See MCM, supra note 6, R.C.M. 502(d)(4) discussion (E) (describing the TC’s responsibility to ensure all witnesses are present for trial).

71. When appropriate, government counsel should consider utilizing an operations order to ensure communication takes place between command channels.

72. A checklist can also be very helpful in tracking task and status progress in this LOE.

73. See McDonald, supra note 26, at 40 (describing discovery issues).

74. See, e.g., United States v. Stellato, 74 M.J. 473, 489-91 (C.A.A.F. 2015) (finding dismissal with prejudice was appropriate because of the “nature, magnitude, and consistency of the discovery violations”).

75. MCM, supra note 6, R.C.M. 701.

76. Id. R.C.M. 703.

77. As a trial counsel and senior trial counsel, I utilized Microsoft Excel to track each item of discovery turned over to defense, the date it was turned over, the bates stamp of each item, and the method used for tracking the discovery—such as a DA Form 200 Transmittal Record or email.

78. Bates Numbering 101: History, Usage and Tutorial, Investintech, https://www.investintech.com/resources/blog/archives/7829-bates-numbering-101-history-usage-and-tutorial.html (last visited Feb. 9, 2021).

79. See Brady v. Maryland, 373 U.S. 83 (1963); MCM, supra note 6, R.C.M. 701(a)(6); U.S. Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for Lawyers para. 3.8(d) (28 June 2018).

80. For example, if the alleged victim in the case made inconsistent statements during a trial team member’s interview, that may create a separate task under this LOE.

81. See Giglio v. United States, 405 U.S. 150 (1972); United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999). The government should review all documented actions taken by Criminal Investigation Command and other agencies for information favorable to defense or disclose the entire case file to defense, including all hand-written notes by agents working on the case.

82. MCM, supra note 6, Mil. R. Evid. 301(d)(2).

83. Id.

84. Id. Mil. R. Evid. 304(d).

85. Id. Mil. R. Evid. 311(d)(1).

86. Id. Mil. R. Evid. 321(d)(1).

87. Id. R.C.M. 404A(a)(1).

88. Id. R.C.M. 404A(a)(2).

89. Id. R.C.M. 405(l)(4).

90. See id. R.C.M. 602, R.C.M. 701(a)(1).

91. See id. R.C.M. 701(a)(4).

92. Id. Mil. R. Evid. 413-414.

93. Id. R.C.M. 703(d).

94. Id. R.C.M. 701(a)(3).

95. United States v. Garries, 22 M.J. 288 (C.M.A. 1986). These disclosures are not conditioned upon a defense discovery request, so the best practice is to create a separate task for each mandatory disclosure that applies in a case.

96. MCM, supra note 6, R.C.M. 701(a)(2)(A).

97. Id. R.C.M. 701(a)(2)(B).

98. Id. R.C.M. 701(a)(5).

99. Id. Mil. R. Evid. 404(b).

100. Demands for Production of Statements and Reports of Witnesses, 18 U.S.C. § 3500(b) (1970) (allowing a defendant to demand from the prosecution “any statement . . . of the witness [who has testified] in the possession of the United States which relates to the subject matter as to which the witness has testified”); MCM, supra note 6, R.C.M. 914.

101. MCM, supra note 6, R.C.M. 703(a).

102. See Bashore, supra note 21, at 3.

103. Id.

104. Herring, Jr., supra note 19, at 41 n.3.

105. See Bashore, supra note 21, at 3.

106. Id.

107. To better anticipate which motions may be appropriate to file in a particular case, a TC should consult with more experienced military justice practitioners and mentors.

108. Lieutenant Colonel Bashore provides a helpful list of resources to begin your research. See Bashore, supra note 21, at 3.

109. See generally Anne Lamott, Bird by Bird: Some Instructions on Writing and Life (Anchor Books 1995) (1994).

110. See Bashore, supra note 21, at 3.

111. See id. Although, a brief bank of current, proven, successful motions might be a good resource to consult, along with checking the cases and other laws cited in the motion.

112. Because the research for—and writing of—motions can be a major time commitment, the trial team should carefully monitor the distribution of work. It makes logical sense to assign the same person the task of researching, writing, and then arguing the same motion. For example, if the case has an MRE 412 issue, assign one member of the trial team to do the legal research into the issue, prepare the relevant witnesses, and write the motion. That same person would also be responsible for arguing the motion during the motions hearing.

113. See Bashore, supra note 21, at 3.

114. Nance, supra note 9, at 48-52; Bashore, supra note 21, at 3.

115. The Greek philosopher Aristotle discovered “three appeals” for persuasive speaking: ethos, logos, and pathos. He believed persuasion occurs when all three components are present. Ethos is an appeal to credibility. We tend to believe people we respect because of their experience, credentials, or even the amount of confidence they exude. Logos is persuasion with “logic, data, and statistics.” See Carmine Gallo, Talk Like Ted: The 9 Public-Speaking Secrets of the World’s Top Minds 47 (2014). Pathos is an appeal to emotions. A speaker can appeal to emotions through storytelling. Although all three components are important for persuading the fact finder, studies show pathos may be the most powerful element in persuasion. Id. at 47-48, 78-80; Chip Heath & Dan Heath, Made to Stick: Why Some Ideas Survive and Others Die 18 (2007). With functional magnetic resonance imaging technology and the study of brain waves, Uri Hasson, an assistant professor of psychology at Princeton, discovered that our brains are most active when we hear stories. See generally Greg J. Stephens et al., Speaker-Listener Neural Coupling Underlies Successful Communication, 107 Proc. Nat’l Acad. Scis. U.S. 14,425 (2010).

116. Nance, supra note 9, at 52.

117. Id.

118. The trial team could make a task for each direct examination and cross-examination to ensure they do not overlook any critical task in the planning process.

119. See Gallo, supra note 115, at 76-81 (describing the importance of practice and rehearsals for persuasive presentations). Many offices conduct “murder boards,” where the trial team practices key parts of a court-martial in front of other people and receive feedback. These murder boards are the same concept, just a different name.

120. Because the special victim prosecutor typically has more experience than the TC, the special victim prosecutor often takes on some of the most challenging tasks—such as the closing argument, direct examination of the alleged victim, or cross examination of the accused. However, lack of experience may also drive the trial team or military justice leaders to assign a task for developmental reasons. Similarly, a trial team member may be assigned a task because of their unique talents in that area. For example, a trial team member with PowerPoint skills could have the task of creating audio-visual aides for the closing argument. Finally, rapport may be a significant factor for assigning tasks, especially for key direct examination roles. If a trial team member has met with the alleged victim several times and seems to have great rapport with them, that trial team member may be in the best position to conduct the direct examination notwithstanding a lack of experience.

121. Lieutenant Colonel James L. Pohl, Trial Plan: From the Rear . . . March!, Army Law., June 1998, at 21, 21 (recommending backward planning in trial preparation).

122. See Gallo, supra note 115, at 76-81 (emphasizing how great presentations take significant time investment).

123. When a trial team conducts thorough planning and preparation for this LOE, the fact finder will feel the difference in the compelling and persuasive nature of the government’s case from start to finish. This LOE brings to life LOE 1 (evidentiary proof) and helps the government achieve its desired end state.

124. U.S. Dep’t of Army, The Red Team Handbook 3 (9th ed. 2020).

125. Id. at 1-3.

126. Id. at 78-80.

127. Id. at 170-72.

128. Id. at 78.

129. Bettina J. Casad, Confirmation Bias, Britannica, https://www.britannica.com/science/confirmation-bias (last visited Mar. 29, 2021).

130. Red Team Handbook, supra note 124, at 79.

131. Id.

132. Id.

133. Id.

134. Id.

135. Id.

136. Id. at 170-72.

137. Id.

138. Id.

139. Id. at 171.

140. Id.

141. Id.

142. Id.

143. Id.

144. Id.

145. Id.

146. Id. at 172.

147. Id. at 171.