By Brigadier General David E. Mendelson & Major Matt Montazzoli
Regardless of your rank, assignment, or practice area, advising commanders and leaders is at the core of what judge advocates (JAs) do.1 The Judge Advocate General’s (JAG) Corps’s primary mission is to provide “independent legal advice to commanders” at all echelons of the Army.2 All JAG Corps senior leaders expect JAs to be competent leaders of character, ready to provide principled counsel across the legal disciplines and throughout the conflict continuum.3
What makes one JA more effective than another is difficult to say, but there are a few commonalties. This article lays out skills and behaviors that may appear straightforward but sometimes go unpracticed, so you can refine your practice.
Legal Advice: Legal is Only Half of It
Senior leaders look for an attorney who can take “a broader view” and provide “prudential and legal advice mixed together.”4 Mastery of the law is table stakes for a successful JA—always necessary but almost never entirely sufficient. You must also be proficient staff officers, able to build and maintain staff products, identify and analyze problems and issues, and, most critically, provide holistic advice.5
Holistic advice to leaders should at least include the following: available courses of action (COAs), risks associated with each COA, a COA recommendation, and the reasons for that recommendation.6 As a legal advisor, you must highlight when you base your advice on external factors other than the law, but failing to offer prudential advice could make your recommendation incomplete.7
Communication is Key
Effectively communicating advice and information is a JA’s primary weapons system. Have you considered how your commanders and leaders best receive information? Are they visual, auditory, verbal, or physical learners?8 Do they prefer written advice or deskside briefings? Do they want those briefings to be with slides, charts, or just a straight-forward discussion? Believe it or not, the easiest way to determine a leader’s learning style is by simply asking them.
A JA’s ability to effectively deliver advice is almost as important as the quality of their advice, and knowing how the client thinks and takes in information is invaluable.9 Leave the “legalese” back in your office. There is no reason to tell a group of infantrymen that the enemy is “hors de combat” when simply saying “out of the fight” will work just as well.10 Leaders are smart people. They already assume that you are smart. While there are times that require legal terms (such as “proximate cause”), “making the complex simple”11 will make you a much more effective (and welcome) advisor.
Listen and Learn
Admit it: many lawyers enjoy talking. While talking and advocating have their place, it is even more important to be an active listener. Active listening, defined as listening to comprehend and internalize the speaker’s thoughts and meaning, is paramount.12 Legal advisors often enjoy special access to the commander, and that relationship can yield insights into the commander’s thoughts and manner of deliberation.13 As a member of a commander’s special staff, you are often in a unique position to listen and learn about issues beyond the legal arena.14 Active listening combined with experience will improve your delivery of advice.
You advise. Even if your advice is legally correct and flawlessly delivered, it remains just that: advice. Commanders and leaders make decisions, and sometimes they decide not to act in accordance with a JA’s recommendation. Thoughtfully and thoroughly advising your leaders is the coin of the realm. Whether they accept your specific recommendation is not as important as them understanding the scope of the COAs available and making the decision they determine is best.15
It is natural for the rejection of carefully crafted advice to sting—there is pride of authorship in any recommendation. However, assuming the COA they select is not unlawful, “salute and execute” it.16 In the event a leader selects a COA that is unlawful, JAs have special duties pursuant to the rules governing professional responsibility,17 but such cases are rare—you will more often encounter instances of decisions that are “lawful, but awful”18—and it is critical to differentiate between the two.19
Soldier First, Lawyer Always
Commanders, leaders, and peers do not care if you are the fastest or strongest officer in their PT formation, or that you are the best at executing basic Soldier skills. Sure, physical readiness is critically important not only to maintain military bearing and remain ready for ground combat, but also to ensure your overall good health.20 But physical readiness is not what sets apart the best JAs. A positive attitude and giving your best efforts is what will stand out to your leaders and colleagues.
That said, your leaders and colleagues will also take notice if you are regularly absent from readiness training, weapons qualification, or if you give less than a complete effort at non-legal tasks. The earnest development of Soldier skills not only builds a JA’s credibility within the unit, but it also demonstrates your commitment to our dual profession and may save lives in combat.21
Legal issues do not always neatly arise during business hours. Commanders and leaders expect their legal advisors to be reasonably available while understanding that their staff need a sustainable work-life balance. Work-life balance may be harder to come by in some jobs than others, but, over the long run, you must always steward yourself and your subordinates to protect against burnout.22
When receiving a late night, early morning, or weekend phone call, you may not have all the resources you need to answer the question. Do not shoot from the hip and guess. Commanders will understand and appreciate your honesty, telling them: “Boss, I don’t have a good answer for you at this time, but I have it for action and will circle back first thing.”23
The JA’s many roles, being “counselors, advocates, and trusted advisors to commanders,” is rarely easy, but it is often rewarding.24 Your responsibility is to enable leaders to think through complex problems and help resolve them. Some leaders and commanders will be openly appreciative of your guidance and advice; however, some will not.
That notwithstanding, find the reward in knowing you are doing your job well if you clearly provide a continuum of wellthought-out COAs, articulate the risk of each (legal and prudential), and provide a recommendation with its accompanying rationale. If you can accomplish this while refraining from using unnecessary legalese and provide it in a manner that the leader best receives information, victory is yours.
Remember—you are engaged in the world’s most consequential practice of law. Take your responsibilities seriously, but don’t take yourself too seriously. Have fun! TAL
BG Mendelson is the Assistant Judge Advocate General for Military Law and Operations at the Pentagon.
MAJ Montazzoli is an operations law officer (Military Personnel Exchange Program) at 1st Division (Australian Army) at Gallipoli Barracks, Queensland.
1. U.S. Dep’t of Army, Field Manual 1-04, Legal Support to Operations vii (8 June 2020) [hereinafter FM 1-04].
2. 10 U.S.C. § 7037(e)(2).
3. U.S. Dep’t of Army, Technique Pub. 5-0.2-1, Staff Reference Guide Volume I, Unclassified Resources para. G-163 (7 Dec. 2020) [hereinafter Staff Reference Guide] (“Commanders at all levels consult their legal advisor before and during the conduct of operations”).
4. Duke University School of Law, LENS 2021 A Conversation with General Jim Mattis, YouTube, at 51:40 (Feb. 26, 2021), https://www.youtube.com/watch?v=ZZLXC_Z94ks.
5. Staff Reference Guide, supra note 3, para. M-3.
6. Lieutenant Colonel Richard P. DiMeglio, Training Army Judge Advocates to Advise Commanders as Operational Law Attorneys, 54 B.C. L. Rev. 1185, 1206 (2013).
7. Brigadier General (Ret.) Rich Gross, Find Your Yoda – Ten Rules for Being a Rock-Star Operational Attorney, Army Law. No. 1, 2019, at 43, 45 (“Be careful to be crystal clear to your clients that you are giving them counsel and not a legal opinion, because you owe it to them.”) [hereinafter Find Your Yoda]. See also Major General (Ret.) Thomas J. Romig, Judge Advocates Must Have the Courage That Principled Counsel Requires, Army Law., No. 4, 2020, at 102, 103 (“If your advice is not based on law or regulation, tell your client, but then explain the basis of your advice.”).
8. Brianna Hansen, Your Guide to Understanding and Adapting to Different Learning Styles, Lifelong Learning Matters (Apr. 16, 2018), https://www.cornerstone. edu/blog-post/your-guide-to-understanding-andadapting-to-different-learning-styles. But see Casper Tucker, Content Dictates Delivery, Learning Styles Do Not, The Cove (Jan. 21, 2020), https://cove.army.gov. au/article/content-dictates-delivery-learning-stylesdo-not (arguing learners should adapt to professional military education delivery instead of altering delivery to suit learning styles).
9. U.S. Dep’t of Army, Field Manual 5-0, Planning and Orders Production para. 3-50 (16 May 2022).
10. See, e.g., then-Brigadier General Charles N. Pede, Communication is Key— Tips for the Judge Advocate, Staff Officer and Leader, ARMY LAW., June 2016, at 4, 6 (discussing the need for clarity, brevity, and audience awareness in communication).
11. Find Your Yoda, supra note 7, at 46.
12. See U.S. Dep’t of Army, Field Manual 6-22, Leader Development para. 4-80 (1 Nov. 2022)
13. Romig, supra note 7, at 103 (recounting a commander’s observation that “I have only two staff officers who tell me what I need to hear, not what they think I want to hear: the Chaplain and the JAG”).
14. See U.S. Dep’t of Army, Field Manual 6-0, Commander and Staff Organization and Operations para. 2-143 (16 May 2022).
15. Id. para. 2-31 (“[U]nderstand that all staff work serves the commander, even if the commander rejects the resulting recommendation.”).
16. See .U.S. Dep’t of Army, Doctrine Pub. 6-22, Army Leadership and the Profession, paras. 2-6, 2-19 (31 July 2019) (C1, 25 Nov. 2019).
17. See U.S. Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for Lawyers r. 1.13(b) (28 June 2018) [hereinafter AR 27-26].
18. Find Your Yoda, supra note 7, at 44.
19. AR 27-26, supra note 17, r. 1.13 cmt., para. (3) (When commanders “make decisions for the Army, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful. Decisions concerning policy and operations, including ones entailing serious risk, are not, as such, in the lawyer’s province.”).
20. U.S. Dep’t of Army, Reg. 350-1, Army Training and Leader Development para. 1-22 (10 Dec. 2017) (Admin. Revision 13 Aug. 2019).
21. See The Judge Advoc. Gen., U.S. Army, JAGC Poster (2014), https://www.jagcnet.army.mil/Sites/jagc. nsf/91EFF120637EC24D85257DB7005D879C/$File/ JAGC%20Poster%202014.pdf.
22. Major General Stuart W. Risch, Resilience is a Shared Responsibility, Army Law., No. 6, 2019, at 2, 3 (“You simply cannot serve those whom you lead—and we are all leaders, regardless of position—without taking good care of yourself.”). See also Colonel Carol Brewer, Closing Argument: People First Care-Wellness-Resilience, Army Law. No. 1, 2022, at 70, 71 (“We acknowledge that certain jobs just come with the expectation of long hours and rare breaks.”); Lieutenant Colonel Aimee M. Bateman, People First, Including You: The Importance of Self-Care, Army Law. No. 6, 2019, at 35, 37 (“[W]e cannot ‘outwork’ the fact that we are humans. Respect that limitation and use your humanity to your advantage.”); Major Rebecca A. Blood, Preventing Burnout in the JAG Corps, Army. Law., No. 6, 2019, at 39, 41 (“[M]ost Soldiers struggle with the concept of self-care.”).
23. See U.S. Dep’t of Army, Field Manual 6-0, Commander and Staff Organization and Operations para. 2-31 (16 May 2022) (explaining effective staff members “anticipate requirements rather than waiting for instructions”).
24. FM 1-04, supra note 1, para. 1-8.