Do I Need to Testify?: Why Three Navy Boards Retained Our Clients

I had the pleasure earlier this summer in representing three fine Sailors before separation boards in Washington State. Each case was unique. In summary, first, an officer faced the end of his career based upon an acknowledged extramarital issue. Second, another Sailor got into trouble for taking an expired medication. Finally, another Perry Officer was being accused of creating a hostile work environment. Significantly, in two out of the three cases, my client’s did not testify before the separation board. I think it is all too common for young and relatively inexperienced civilian lawyers to get somewhat, shall we say,  gun shy and force their clients to testify to get their story out. The focus, however, must always be on telling the story through other witnesses, which is easily done. The only exception to this general rule, in my humble view, is when only the client has knowledge that is profoundly important to the defense theory of the case, which, by definition  requires him or her to testify. Beware that is such circumstances the panel members will, naturally, be biting at the bit to ask your client “why he should get a pass” when others, known to the board member, have previously gotten involuntarily kicked out. One must, and I mean MUST, address this issue head-on during the initial questioning of the board members (often called voir dire), to ensure two things. First, that the board members will not assume the worst by your client not testifying.  And second, the board member concurs with you that whatever happened in those other board cases is irrelevant to the facts in your case; and life.   It is ultimately about “due process” and, in the three Navy boards that we recently defended, and were successful at, we got exactly that.


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