Court-Martial Defense in a Changed System: What You Need to Know
If you’re facing a court-martial, the last thing you want to hear is just sit, wait, and check back with the defense office once you’ve been formally charged. But that’s the standard approach taken by most military defense offices. That leaves you with only one good option: hire a civilian military lawyer who can work with you from the beginning of the case to its end, starting with the investigation.
But you also don’t need sales pressure from a civilian attorney, or an attorney who speaks in legal jargon and court-martial acronyms instead of helping you understand what you’re facing and the best way to get through it.
You need someone who understands the unique cultural and legal climate of each military branch. Only an experienced civilian military can have that variety of perspectives. And of course, you need someone with an extensive history of winning cases like yours.
A crucial first step is getting a sense of how much the military justice system has changed in the past few years, and what that means for you.
We’ve been defending service members for over 25 years. We’ve also spent that same time handling serious federal criminal cases, most of them involving complex investigations, mandatory minimums, and high-pressure trial work. That background matters now more than ever because military justice is shifting toward the federal model.
The new system retains some elements unique to the military, but the design is federal. That gives attorneys like us a head start, due to our parallel experience, and it makes a difference not only in the courtroom but in the investigative and poetical stages as well. Let’s talk about what changed, why it matters, and what kind of defense you should be looking for if you’re facing charges under the UCMJ.
How Military Justice Has Changed Under the UCMJ
For decades, military commanders had the power to decide whether to refer a case to trial. That power has been pulled back. Now, the decision to charge in certain cases belongs to a new and separate authority: the Office of Special Trial Counsel, or OSTC. Each branch has one. These are the senior prosecutors. They don’t answer to the command. Their job is to decide whether a case should move forward and then lead the prosecution if it does. That means the influence of politics, optics, and command pressure is fading.
Sentencing rules have changed as well. Until recently, a defendant would usually have the option of having jury or judge decide his sentence. Now, borrowing from the federal model, judges determine sentences in military trials. That shift matters. It reduces the risk of extreme outcomes handed down by unpredictable panels. It also allows your defense team to tailor sentencing arguments with more clarity and make arguments as sophisticated as they need to be, and even smuggle in some information a court might not have allowed in the former system when arguing to a panel.
We’ve been doing federal sentencing work for two decades. We know how to speak that language. We know how to make a sentencing argument that lands with a judge who has heard — and no doubt made in her previous assignments— hundreds before yours.
Together, these changes move the system away from command influence and toward a more prosecutorial model. That’s not good or bad in itself, but it is different. And difference requires adaptation and finesse.
What People Got Wrong About the New System
When these reforms were first rolled out, most defense lawyers inside the JAG system and outside of it assumed the worst. They thought prosecutors would be more aggressive, trials would become more likely, and sentences would get harsher across the board. We didn’t expect that to be the case. We expected there to be unintended consequences that would benefit the defense and make cases smoother and fairer, and that’s what we’ve been seeing so far.
With experienced prosecutors now making key decisions without interference, we’ve seen fewer weak cases get referred to trial. There’s still pressure to pursue charges in certain situations, but savvy prosecutors tend to see the problems with taking weak cases to trial. If the evidence is thin, if the witness is unreliable or doesn’t genuinely want to go forward, OSTC lawyers are more likely to shut it down. That wasn’t always true when command made the call. The result is fewer garbage cases, and that’s good for everyone.
Second, experienced prosecutors tend to know what a case is worth. They have a global perspective. They understand what’s fair in a disposition. They’ve seen enough to know the value of a resolution. That makes plea discussions more grounded. You’re talking to someone who wants a conviction, but who also wants a clean case file and a obtainable result. Prosecutors don’t like forcing weak cases to trial, and they hate losing.
In this new paradigm, it’s essential for your attorney to have a high social IQ, sterling reputation, and strong relationships with OSTC counsel. Not to be buddy-buddy, but to give you the best chance of getting out of this situation intact.
Finally, judge-alone sentencing brings predictability. There’s still risk, but sentencing has become more analytical, less emotional. That plays to the strengths of defense attorneys who know how to work with numbers, policy, and mitigation, and who know how to build a case for mercy that’s honest and earned, not melodramatic.
How Our Experience Fits the New Landscape
We’ve been trying cases in military court for over 25 years. We’ve tried them in CONUS and OCONUS locations. We’ve handled sex offenses of every kind, classified evidence cases, flag-officer misconduct, and everything in between. At the same time, we’ve been working in in federal court as well, both as trial lawyers and consultants. That experience didn’t always overlap with military practice in obvious ways. Now, it does. And we’re not aware of any civilian military firm that can match our parallel experience in federal and military court.
Again, the new court-martial model looks more like federal court every day. Prosecutorial control. Judge sentencing. A clear focus on pretrial strategy, motion work, and mitigation planning. If you’re a defense attorney who only knows the old ways, like relying on informal channels, command influence, and jury nullification, you’re killing your clients’ chances. But if you’ve spent the last 20 years fighting federal prosecutors and arguing federal sentencing factors, you’re ready. We were already experts when military attorneys started learning a new language.
Why Your Choice of Attorney Matters Now More Than Ever
When you’re accused of a crime under the UCMJ, the stakes are obvious: your freedom, your career, your name. What’s less obvious is how fast the terrain is changing. Military justice isn’t what it was five years ago. The command has less control. The rules are stricter. The margins are tighter. You don’t need someone trying to catch up. You need someone who’s already comfortable in the new model.
That means hiring a lawyer who knows how to:
- Analyze the sufficiency of government evidence
- Negotiate with experienced prosecutors on equal footing
- Anticipate judge-determined sentencing outcomes
- Leverage expert networks to challenge forensic evidence
And it means hiring lawyers who will handle your case themselves, not a law firm that will use the senior attorney to win you over and then pass you off to junior counsel once you hand them your money.
When you hire us, you get us. We’re not bargain-rate attorneys but we charge competitive rates, and we’re cost-efficient. We don’t waste hours. We don’t play for show. We don’t use our clients’ predicaments to get ourselves on television. We protect clients, build trust, and keep people out of prison. That’s the job. Discrete, expert, successful representation.
You may not be entitled to a free military lawyer until after charges are filed. And when you do get one, JAG attorneys are often too busy with other cases to meet with you early. A civilian lawyer can begin advising and defending you as soon as you learn you are under investigation.
What You Can Expect If You Work With Us
You can expect clear communication. You’ll know what’s happening with your case and why. We’ll give you our honest opinion, not just your options. We’ll help you make decisions based on risk and reality, not fear or fantasy. We’ll fight when there’s something to fight for. We’ll resolve cases when it’s the best way out for you.
How Much Does a Civilian Military Lawyer Cost?
You can expect clarity on cost. We charge flat fees, not hourly rates. That means no surprises. You’ll know what your case costs, and what’s included, before we begin.
Hiring a civilian lawyer is expensive — often ranging from $4,000 to $25,000 depending on the case — but those costs are small compared to the lifetime consequences of losing your case.
If you lose, the consequences can include:
- Loss of your job
- Loss of retirement benefits
- Loss of housing
- Loss of medical benefits
- Repayment of enlistment bonus
- Repayment of education expenses
- Sex offender registration (where applicable)
And you can expect honesty. If we think you’re being railroaded, we’ll say so. If we think a plea is the best path, we’ll explain why. If we think you’re lying to yourself, we’ll tell you. We’ve been doing this long enough to know that denial doesn’t help anyone.
Frequently Asked Questions
Q: Can I hire a civilian lawyer for a court-martial?
A: Yes. If you can afford one, you should. The military is not required to pay for a civilian lawyer, but it cannot stop you from hiring one to defend yourself fully. Most service members go through the process without outside counsel, and the system is comfortable with that. It leans on obedience, patriotism, and the belief — often unfounded — that the process will be fair. It’s unlikely that you will be openly discouraged from hiring a civilian attorney, yet the pressure to go along is real, even when it is not spoken. Your right to hire an expert military attorney is as essential to your outcome as your right to silence.
Q: Do I still keep my assigned JAG defense lawyer if I hire a civilian attorney?
A: Yes, in the usual case, you will. In some administrative cases, the JAG defense office might not provide an attorney if you hire a civilian. However, in any case involving UCMJ action, you are entitled to the assigned uniform defense counsel and are allowed to hire an attorney at your own expense. If you hire a civilian lawyer, that lawyer should be in charge of the defense team, should be the point of contact for all significant discussions, and should maintain a smooth working relationship with your defense JAG’s office.
Q: When should I hire a civilian military lawyer?
A: Immediately upon learning you are in trouble or under investigation. Most defense JAG offices will not provide you with a lawyer at the start of an investigation. In the usual case, you will have to wait until you receive UCMJ charges, which could be months later, and after the decision has been made to move forward against you. Early involvement protects your rights and can influence the direction of the case. An attorney will answer your questions, calm your anxieties, get updates on your case’s progress, and help you decide whether cooperating with the investigation is wise (rare, but not unheard of). Patience might be a virtue, but it is not a strategy. Even in the rare instance where you are given a defense JAG early, that attorney is unlikely to have the experience, sophistication, or finesse of a seasoned civilian military lawyer. When you are up against the government, and the government has unlimited resources to use against you, you need the best possible legal defense as soon as you can get one.
Q: Who pays for a civilian military lawyer?
A: The service member pays. The military will provide a free defense lawyer from its JAG corps, but it will not provide any financial assistance for hiring a civilian attorney. Hiring a lawyer can feel like an overwhelming process, but a good civilian military lawyer will put you at ease. Ethical civilian military law firms usually charge flat fees instead of hourly rates. The fee should be quoted up front to the extent possible, based on the scope and complexity of your case, and that fee is the price for all services. You should not be penalized for communication about your own situation, so the flat fee should cover all text messages, phone calls, and emails, in addition to legal work.
Q: How much does it cost to hire a civilian military lawyer?
A: Typical costs for the initial, investigative stage of a case can range from $4,500 to $8,500. Our initial fee is usually $6,500. If an Article 32 (probable cause) hearing is held, expect to add $8,000 to $15,000. If the case goes to trial, a typical additional fee would be between $ 15,000 and $30,000. Start to finish, a defense can cost upwards of $50,000. Some firms charge twice that amount, though even these firms will have an initial fee in the $4,500 to $8,500 range. While the cost of a case that goes all the way to trial can be high, most cases are resolved during the initial period through dropped charges, an administrative resolution, or nonjudicial punishment. The cost arming yourself with a quality defense might be high, but if you lose your case, the long-term consequences can include: lose your job, lose out on future jobs, lose your retirement, lose your military housing benefits, lose your medical benefits, lose or have to pay back your enlistment bonus, have to pay back the cost of your military academy education, and in some cases you may have to register as a sex offender.
Next Steps
If you’re facing a court-martial or believe you’re under investigation, reach out. Early advice can change the course of a case. Even if you haven’t been charged, the groundwork you lay now will matter later. Whether it’s a drill weekend incident, a boozy consent case, or something bigger, you don’t want to wait until things escalate.
Why You Should Hire a Lawyer Before You’re Charged
Too many service members wait until formal charges are filed before they start looking for help. Some don’t think they’re under serious investigation. Some think the command will make it go away. Some think they’ll get a free military attorney if and when things escalate. And some just want to keep their head down and hope.
The problem is that by the time charges are served, key decisions have already been made. Witness statements are already locked in. Investigators have already formed a theory. Prosecutors have already begun shaping their case. Egos have been invested. And worst of all, the client has been sitting in silence, stressed, confused, and unprotected, while others controlled the power, the evidence, and the story.
Typically, the government doesn’t give you a lawyer during the investigative phase. They don’t have to. You’re not technically a “defendant” yet. But that phase can last months, sometimes longer. If you wait until you’re officially charged, you’ve already lost valuable time.
That’s why early involvement matters.
When we’re brought in early, we don’t wait. We contact prosecutors, commanders, and investigators immediately. We develop counter-narratives. We inform OSTC attorneys of things months before they get a report from investigators. We create hesitation in the minds of agents and prosecutors. We get ahead of the story before it calcifies. Sometimes, we stop the case from ever being charged. Other times, we shape how it will go if it is.
Even if the case moves forward, clients are in a much stronger position when they’ve had someone in their corner from the beginning. They’re informed, prepared, and emotionally grounded. They’ve had someone to talk to, someone who knows the system and doesn’t flinch at the word “CID” or “NCIS,” let alone, “child pornography” or “rape.” That alone can change everything.
You don’t need to wait. In fact, you shouldn’t. And if you’re not sure whether your situation is serious enough to involve counsel, that’s exactly when you should ask.
Why the Article 32 Hearing Still Matters
In cases with the most serious charges, those headed to a general court-martial, a phase occurs between the investigation and trial. Simply put, the government has to establish that there is probable cause before the case can go forward to trial.
The preliminary hearing, known in the military as the Article 32 hearing, is often misunderstood and undervalued, especially by less experienced attorneys. It’s supposed to serve as a check on the government before a case heads to trial. In practice, the bar for probable cause is low, and the government almost always clears it.
That’s exactly why some military attorneys waive it. They see it as a formality. They concede probable cause and move on, believing they’re saving time or energy. But in most cases, that’s a mistake. In some, it’s malpractice.
A waived Article 32 hearing is a almost always a missed opportunity. For a defense team that knows what it’s doing, the hearing is about far more than probable cause. It’s a window into the government’s case. It’s a dry run for trial. It forces the government to articulate its legal theory and highlight the evidence it intends to rely on most at trial. It’s a moment to build leverage.
And if you’re civilian attorneys like us, it’s often the first chance to sit across from the prosecution, the JAG defense counsel, and the client in one place.
We use that time to do real work. We establish trust with our client face to face. We build rapport with the detailed military defense counsel. We talk to the prosecutors in person, quietly, candidly. That’s when human persuasion starts. That’s when you get a read on the government’s mood and appetite for resolution or a sense for how strong the prosecutors think their case really is.
It’s also when you get access to sensitive evidence that can’t be sent to the defense. In certain cases, especially those involving forensic media, classified material, or vulnerable witnesses, the Article 32 hearing may be the only opportunity before trial for the attorneys to see that evidence with your own eyes. That changes how you build your strategy. It changes how you advise your client. It changes how you assess the true stakes.
And even if the government doesn’t present witnesses at the hearing, the defense can still make a record. You can use that record to show the hearing officer that the case might not hold up at trial. You can plant seeds for a dismissal or a more reasonable disposition.
None of that happens if you waive the hearing. None of it happens if you treat the 32 like a rubber stamp.
There’s no downside to making the government show its hand. There’s no downside to pushing for detail, clarity, and accountability. There’s no downside to getting all of the relevant human beings in the same place at the same time. The Article 32 hearing isn’t window dressing, it’s leverage, if you know how to use it.
If you’re under investigation or facing charges, don’t wait to get help. The earlier you bring in real expertise, the more options you have, the stronger your case will be, the more at ease you’ll feel. If you want straight answers and serious representation, get in touch. We’ll listen. If we can help, we will.