• U.S. Army Judge Advocate General’s Corps Issue 6 2019 Army Lawyer • Issue 6 • 2019 Resilience 30 Plea Agreements 48 Defamation & Sex Assault 64 #BJA Life 74 Judge advocates CPT Julia Flores, right, and CPT Jonni Stormo, center, along with SFC Robert Love, left, huddle during a training exercise in Grafenwoehr, Germany, last fall. (Credit: Stefan Hobmaier/AP) A judge advocate’ s parachute deploys during an airborne operation at Fort Bragg. (Credit: Justin Kase Conder/AP) Table of Contents Editorial Board Issue 6 • 2019 Captain Nicole Ulrich Departments Features Editor-in-Chief, The Army Lawyer Court Is Assembled No. 1 Resilience Captain Pearl K. Sandys Editor-in-Chief, Military Law Review 2 Resilience Is A Shared 30 The Critical Character Responsibility Attribute of Empathy Major Courtney M. Cohen By Major General Stuart W. Risch By Brigadier General Joseph B. Berger and Director, Professional Communications Program Major Courtney M. Cohen Lieutenant Colonel Jess B. Roberts News & Notes Vice Chair, Administrative and Law of Land Warfare 34 People First, Including You Civil Law Department 4 Updated The Importance of Self-Care A Vital Tool for JAs By Lieutenant Colonel Aimee M. Bateman By Michael W. Meier Lieutenant Colonel Keirsten H. Kennedy Chair, Administrative and Civil Law Department 38 Preventing Burnout 5 The Army Electronic Discovery in the JAG Corps Mr. Fred L. Borch III Program Turns One By Major Rebecca A. Blood, Ph.D. Regimental Historian and Archivist By Allison A. Polchek Lieutenant Colonel Megan S. Wakefield 42 The Effects of Stress 8 If By Chaplain (Major) Jeff Sheets Chief, Strategic Communications A Judicial Variation on Rudyard Chief Warrant Officer Two Matthew M. Casey Kipling’s Famous Poem By COL Timothy P. Hayes Jr. 44 Functional Fitness Can Be Fun Strategic Communications Officer By Captain Jeri L. D’Aurelio Mr. Marco Marchegiani Azimuth Check Art Director, Government Publishing Office No. 2 9 Understanding People Is the 48 A New Paradigm for Plea Mr. Sean P. Lyons Key to Successful Leadership By Fred L. Borch III Agreements Under the 2016 MJA Editor, The Army Lawyer By Lieutenant Colonel (Retired) Bradford D. Bigler Lore of the Corps No. 3 The Army Lawyer (ISSN 0364-1287, USPS 490-330) is pub- 12 An Army Lawyer lished six times a year by The Judge Advocate General’s Legal and the A-Bomb Center and School, Charlottesville, Virginia, for the official use of By Fred L. Borch III 64 Defamation Litigation in Army Army lawyers in the performance of their legal responsibilities. Sexual Assault Prosecutions By Captain Michelle B. Kalas The opinions expressed by the authors in the articles do not necessarily reflect the view of the Department of Defense, the Practice Notes Department of the Army, The Judge Advocate General’s Corps No. 4 The Art of #BJAlife (JAGC), The Judge Advocate General’s Legal Center and School, 18 Effectively Presenting or any other governmental or non-governmental agency. Mas- Digital Evidence culine or feminine pronouns appearing in this pamphlet refer By Colonel Charles L. Pritchard 74 Part I: How to Become a Hit with to both genders unless the context indicates another use. Your Brigade Command and Staff By Major Caesar B. Casal The Editorial Board evaluates all material submitted for publication, the decisions of which are subject to final 24 Practical Advice for approval by the Dean, The Judge Advocate General’s School, Military Balls U.S. Army. By Major Jonathan J. Wellmeyer 77 Part II: How to Remain a Hit with Your Brigade Unless expressly noted in an article, all articles are works of the U.S. Government in which no copyright subsists. Where Command and Staff By Major Michael (JR) Townsend and Major copyright is indicated in an article, all further rights are reserved 26 Navigating the Murky to the article’ s author. No compensation can be paid for articles. Waters of the Former Tricia L. Birdsell Spouses Protection Act The Army Lawyer may make necessary revisions or dele - By Major Gavin G. Grimm tions without prior permission of the author. An author is Closing Argument responsible for the accuracy of the author’s work, including citations and footnotes. 82 The Loneliest Jobs in The Army Lawyer articles are indexed in the Index to Legal the JAG Corps Periodicals, the Current Law Index, the Legal Resources Index, SVPs, SVCs, and DCs— and the Index to U.S. Government Periodicals. The Army Lawyer is also available in the Judge Advocate General’s Don’t Go It Alone Corps electronic reference library and can be accessed at By LTC Rebecca L. Farrell, MAJ Joshua S. https://tjaglcspublic.army.mil/tal. Mikkelsen, and LTC Keirsten H. Kennedy Articles may be cited as: [author’s name], [article title in italics], ARMY LAW., [date], at [first page of article], [pincite]. On the cover: Now-CPT Jeri D’Aurelio climbs a rope during her Direct Commissioning Course at Fort Benning, Georgia. (Credit: Dan Torok/TJAGLCS). servant leadership, and stewardship. We depict each of these as points on our Corps’s North Star; leading us as an institution ev- er-forward, regardless of circumstance. By focusing on our Constants, we best achieve and maintain excellence—both as individu- als and as a Regiment. Rather than being a separate tenet of our Constants, resilience underpins each of them. Delivering principled counsel takes strength and courage, often in opposition to momentum-gathering group-think. You cannot master the prac- tice of law, day in and day out, without the fortitude to push forward beyond the slings and arrows of daily life. Likewise, without resilience, servant leadership is an absolute impossibility. As noted author El- eanor Brownn famously said, “You cannot serve from an empty vessel.”5 Finally, per- sonal and institutional resilience lie at the very core of stewardship. Merriam-Web- ster dictionary defines resilience as “an ability to recover from or adjust easily to misfortune or change,”6 and notes that stewardship is “the careful and responsible management of something entrusted to (Credit: istockphoto.com/marrio31) one’s care.”7 We are all stewards of our Corps. Stewardship of our Corps demands that we responsibly care for our Regiment, our teammates, and ourselves. Court Is Assembled In our line of work, resilience is fundamental. We are in the business of helping commanders, Soldiers, and Family members solve problems. In many cases, we must simultaneously guide our clients Resilience Is A Shared Responsibility through some of the most difficult profes- sional and personal circumstances they may face in life, while also confronting our own By Major General Stuart W. Risch personal and professional challenges. We all need to be able to get back up when we get knocked down. And we will get knocked It is not the strongest of the species that survives, nor the most intelligent, down, repeatedly. Resilience allows you to but the one most adaptable to change.1 focus on what truly matters and to find a —Leon C. Megginson way to get past the incessant noise that sur- rounds each of us every day. By being ready and resilient—rather than reactive—by Two years ago, the American Bar Asso- a Corps, the well-being of every member striving to take care of ourselves and those ciation’s National Task Force on Lawyer of our team is absolutely vital. To echo the around us, we are better positioned to be Well-Being released The Path to Lawyer Chief of Staff of the Army, General James principled counselors, substantive masters, Well-Being: Practical Recommendations for C. McConville: our people are our number servant leaders, and effective stewards of Positive Change.2 The report noted that “to one priority.4 our great Corps. be a good lawyer, one has to be a healthy The Judge Advocate General and I I know, I know—easy to say, but lawyer. Sadly, our profession is falling short often talk about our Corps’s Constants— tough for us all to do. Sometimes, we look when it comes to well-being.”3 For us, as principled counsel, substantive mastery, at others who we believe have achieved 2 Army Lawyer • Court Is Assembled • Issue 6 • 2019 success, and we think that it must have come easily—that perhaps that person does not face the same struggles we do. That is the Iceberg Theory of Success—the idea that everyone sees a person’s accomplishments floating on the surface but not all of the struggles, the failures, and the determina- tion that is often deeper and larger, just beneath the surface.8 Take the Army Combat Fitness Test (ACFT), for example. We all know some- one who is incredibly fit, who will score high on that test, and it is convenient to say, “But it’s easy for him! He’s a PT beast!” It’s also easy to say to ourselves, “It’s just harder for me than it is for that person.” The truth is, everyone struggles. Everyone has to put in work, whether preparing for the ACFT, a cross-examination, or pre- senting a new idea to your boss. Resilience is in the work. It is also in openly sharing what’s weighed you down and letting others know how you overcame or are overcoming the obstacles. So, how do you cultivate resiliency? I wish I could tell you there was a foolproof method that would work for everyone, but there is no one-size-fits-all solution. You have to find a healthy outlet that works (Credit: istockphoto.com/marrio31) for you. For me, simply put, I rely on my faith, my Family, and my friends. I find that friends, Family, co-workers, or teammates Notes time spent reading a daily devotional, or in about how they find balance and resil- 1.