As a member of the judiciary, I have the privilege—and responsibility—of making decisions that can significantly affect the lives of the people who come before me. As a veteran, I also understand that military service can create circumstances that are not always apparent from the pleadings or readily understood within a civilian courtroom.
I have seen firsthand how important it is for counsel to recognize those circumstances early.
This article is not intended to be a primer on military law. Rather, it is a practical perspective for civil practitioners: what I believe counsel should consider when representing a service member, and what I need from counsel when military service intersects with a civil proceeding.
Start by Asking: Is Your Client Serving?
It sounds simple, but it is an important first question.
At the outset of a representation, determine whether your client is on active duty, serving in the National Guard or Reserve, deployed, preparing for deployment, or subject to other military obligations that could affect the litigation.
Do not wait until a hearing is approaching to make that determination.
The Servicemembers Civil Relief Act provides protections that can affect a service member’s participation in civil proceedings.
From my perspective on the bench, the important point is not simply knowing that your client serves.
You should understand how that service affects the particular case before asking the court to act.
Before Seeking a Default, Do Your Homework
This is particularly important.
Before asking the court to enter a default against an individual defendant, counsel should determine whether the defendant is in military service and whether the protections of the SCRA apply.
A defendant’s failure to appear does not necessarily mean the defendant has simply chosen to ignore the lawsuit. Military obligations may affect a service member’s ability to receive notice, respond, or appear.
The SCRA contains specific protections concerning defaults, including requirements relating to determining military status and providing the appropriate affidavit or documentation.
If you are asking me to enter a default, I expect you to have already addressed whether the defendant is protected by the SCRA.
Do not make the court discover that issue after the request for default has been made.
Make the military-status inquiry part of your standard default checklist.
Bring the Court the Information—Not Just the Problem
When military service affects a client’s ability to participate, counsel should give the court enough information to make an informed decision.
For example, if your client is deployed, explain the nature and anticipated duration of the deployment, the client’s ability to participate, and what relief you are requesting.
If a continuance or other accommodation is necessary, propose a practical solution.
Good advocacy gives the court a path forward.
Do Not Treat Deployment as Either an Excuse or a Weapon
This is particularly important in family-law cases.
Military service can require a parent to spend significant periods away from a child. That absence should not automatically be characterized as a lack of interest in parenting.
At the same time, military status does not eliminate the court’s obligation to consider the best interests of the child.
Counsel can help by presenting realistic solutions.
Can the parent maintain regular electronic communication? How should possession work during deployment? What happens when the service member returns? What happens if the parent is stationed somewhere else?
I encourage counsel to think beyond the hearing in front of you and anticipate the family’s next set of circumstances.
The goal is not special treatment for a military parent. The goal is an order that reflects reality while protecting the best interests of the child.
Draft the Order for the Life Your Client Will Actually Live
One of the most valuable things counsel can do is draft an order that anticipates military realities.
Before presenting an order, ask yourself:
Will this order work if my client is deployed?
What happens if my client is transferred?
What happens if my client is stationed overseas?
Is there a mechanism for addressing a foreseeable change in circumstances?
The best time to solve a foreseeable problem is when the order is being drafted—not after the problem has already occurred.
Know What You Don’t Know
Military compensation and benefits do not always fit neatly into the categories lawyers encounter in ordinary civil litigation.
Military pay may include base pay and various allowances, and military retirement and survivor benefits can involve rules that are unfamiliar to lawyers who do not regularly practice in this area.
If a military benefit matters to the case, understand it before asking the court to make a decision about it.
And if you do not understand it, get help.
Consult counsel who understands military benefits. Consult military counsel when appropriate. Do the research necessary to make sure the court is receiving accurate information.
Knowing when you need assistance is part of competent advocacy.
Remember That the Order May Have Consequences Beyond the Courtroom
A civil order can affect a service member’s life in ways that may not be immediately apparent.
That is particularly true when military benefits, retirement, survivor benefits, or other federally governed matters are involved.
Counsel should therefore consider not only:
“What result do I want the court to reach today?”
but also:
“What will this order mean for my client six months, five years, or ten years from now?”
That is not always easy to answer. But it is worth asking.
What I Need From Counsel
When military service is relevant to a civil proceeding, I encourage counsel to come prepared to answer five basic questions:
What is the client’s military status?
Does military service affect the client’s ability to participate in this proceeding?
Does the SCRA apply, and have its requirements been addressed?
Could the proposed order affect the client’s military obligations or benefits?
Will the order continue to work if the client’s military circumstances change?
If counsel can answer those questions, the court is in a much better position to do its job.
A Final Perspective
As a member of the judiciary, I do not expect service members to receive special treatment. I do expect them to receive the benefit of competent, informed advocacy.
As a veteran, I understand that military service can require individuals to meet obligations that are often beyond their control.
And as a judge, I know that I can only consider the circumstances that counsel brings before me.
That is why I believe lawyers representing service members have a particularly important role.
Identify the military issue early. Verify what needs to be verified. Tell the court what it needs to know. Ask for practical solutions. And draft orders that account for the life your client will actually live.
Our civilian courts exist to provide justice to everyone who comes before them—including those who serve our country.
Never is the responsibility of counsel greater than when representing someone who has accepted the responsibility of serving others.
When military service meets the courtroom, good advocacy begins with understanding the person behind the case.
