After almost 30 years of being a lawyer, just when I think “I’ve got
this, it should be no problem” I realize how much I still have to
learn. Recently, while helping a survivor in civilian court, I slammed
into a wall that every attorney will hit when there are concurrent
military and civilian investigations and proceedings and you need to
serve or subpoena someone and/or subpoena documents. Some lessons
learned:
Lesson #1: You cannot force service on base and it's a challenge. A
servicemember or a dependent who lives on base can legally refuse
service. SJA offices and Commands can try to facilitate, but they can’t
compel anyone to take the papers. Real Life: I ended up having to get
someone to serve the person off base, which required some PI skills I
did not know I had.
Lesson #2: Subpoenas? Not without dancing the Touhy dance. If you need
testimony or records, your subpoena means nothing until it goes through
the different paths with a full Touhy request. All military departments
follow the same legal framework, but each branch has its own
implementing regulations and processes. And they want everything: case
posture, relevance, Privacy Act issues, estimated time – keep going. All
this all takes ALOT of time. The 5-day service rule applicable in many
states does not apply here....
Lesson #3: Ongoing investigations? This shuts everything down. If a
Military Criminal Investigative Organization (MCIO) is involved, access
to witnesses or information becomes impossible until the investigation
is done.
Some tips:
• Try to coordinate service of process with the SJA, but serve off-base
when possible. Document your attempts. If a witness who lives on base
won’t accept service, then see if they are willing to testify
voluntarily/remotely.
• Start your Touhy request before the court even asks.
• Tell the judge early if there is a military investigation going on,
and explain the processes and challenges.
• Keep the victim centered, ensure they have military and civilian
victim advocate/victim counsel support, and communicate with all -
despite procedural delays.
Ruth's Truth: Civilian courts run on deadlines and expectations. Military regulations run on federal processes and caution. Victims get stuck between systems that do not communicate. Navigating both systems is complicated, and that is a gap to try to help close.