Caring. Effective. Efficient.

Federal appellate court commands professional work product

What is the Deep Issue in the Case?

Very generally stated, the VA has a duty to notify the veteran of the elements of his claim for service connection and the evidence that might prove those elements. 38 USC 5103(a).

The VA repeatedly denied service connection for the veteran's claimed conditions because he lacked proof of exposure to ionizing radiation. The Board of Veterans Appeals (BVA) denied the veterans claims for service connection because he had not proved a current disability. 

Did the VA or BVA fail to fulfill its Duty to Notify by not telling the veteran he had not submitted evidence of a current disability?

 

What did the CAVC Decide?

The CAVC found that the VA did not fail to fulfill the Duty to Notify, largely because the veteran's attorney at the Court failed to make arguments asserting how the duty had not been fulfilled.

Takeaway Points for VSOs and Veterans Disability Lawyers:

1) The CAVC is a federal court: treat it like one.

I have been inside a lot of courtrooms - from traffic court (where I was a defendant) to Texas State Court (where I was a lawyer), to the U.S Supreme Court (where I got a behind-the-scenes tour from a clerk to one of the Justices some years back).

Every court room has its own feel - it's own aura, if you will. 

I remember the first time I walked into the Federal Circuit Court of Appeals for oral arguments.

It didn't look like the courtroom I had pictured in my mind. But I tell you one thing, you can feel the atmosphere of seriousness that is in every Federal Court.

Don't get me wrong --  state courts in Texas are serious places, but there is a more relaxed and informal feeling. Almost like a "we-are-all-neighbors-let's-fix-this-problem" feeling.  The feeling in Federal courts, particularly federal appellate courts, is far more formal.

The atmosphere is all about the law - more specifically the 'craft' of law.

As a law student clerk for a former Chief Justice for the Texas Supreme Court, I sat in on dozens, possibly hundreds, of oral arguments. (Oral argument is fascinating to me, and I observe or listen to them whenever I can).

As serious and formal as the Texas Supreme Court was - and is - it pales in comparison to the formal atmosphere of a Federal Appellate Court. The former was a place of resolving disputes through the law. The latter is resolving the law.

My point? It's serious and professional business in federal appellate court, folks.

The Court of Appeals for Veterans Claims (CAVC) is a federal appellate court, and we advocates who practice before it need to ensure we treat it as such.

If there is a clear theme emerging in the Court's jurisprudence in 2018, it is this:

The CAVC is demanding serious work from the advocates who appear before it.

Recently, I wrote about a government attorney who invoked the ire of a judge at oral argument. I have written about a case where the Court expressed frustration with a veteran's attorney not being concrete and making an argument the Court asked for.

I also wrote about a decision in which the Court stopped just short of raising ethical concerns with a lawyer who simultaneously acted as his client's medical expert.

There have been more decisions which support my analysis, but the Burgess case is a landmark decision.

It is a big deal for a Federal appellate judge to tell counsel - in the body of a decision - to be mindful of the Court's rules and his ethical duty of competence as a lawyer. 

The Court isn't joking: they are being very professional and giving different gradations of warning. First and foremost, the Court wants us to pay attention to its rules.

Take your Court practice seriously, folks. Treat the Court of Appeals for Veterans Claims (CAVC) with all the respect and professionalism due a federal court. 

Push the edges of the law to expand its reach.

Challenge the VA's atrocious behavior and conduct towards veterans.

Seek to over-rule prior decisions that are poorly reasoned or statutes that are improperly interpreted.

Nobody is saying you cannot be an aggressive advocate at the CAVC. 

Just take your work seriously, and afford the CAVC all the respect due a federal appellate court.

 

2) An "Ounce of Prevention" for lawyers practicing at the CAVC.

Having said all of the above, I do not want to give the impression that I am perfect. Not by a long shot.  As hard as I work to improve my brief-writing skills, when I go back to read my briefs from even a year ago, I see how they could have been better written, or better argued. 

I'm not perfect - nor are you.  Life happens to me just like it happens to you. 

Last fall, my oldest son had to go into the hospital for a major surgery. The only doctor available to perform the surgery was out of state. That, combined with the recovery period, pulled me away from work during a very heavy briefing schedule. Both the CAVC and the Federal Circuit, as well as OGC and the Dept of Justice were very understanding of the situation, and really bent over backwards to be helpful in a time of need.

We are all professionals, we are all in this together. If you are having problems with your caseload - FOR ANY REASON - reach out to someone. 

If not for your sake, for your clients. 

I have written that we lawyers are often the light at the end of the tunnel for our clients - too many times I have not taken care of my own needs and I worry that I have been the light of an oncoming train.  If you are in trouble, ask for help.

Here are 3 other things we can all do to produce more professional work product before the CAVC:

Get a Mentor.

Find the attorneys that work near you, or the attorneys who have the practice you want, or who work the cases you want to work and reach out to them. Ask them questions, ask if they will talk to you about your cases or mentor you. If you plan to take a lot of their time, offer to pay them for a couple hours a month. 

I have a couple "Guerilla Mentors": folks whose writing I read, study and dissect to learn how they write or argue. They don't even know they are my mentor, but because of their success, I emulate their work.

I have even been known to email or call federal appellate judges: not the ones I appear before, of course. But I have called the offices of judges at the 5th, 7th, and 8th Circuits to ask questions about legal writing: I never talk to the judges, but I do learn a lot from their clerks. 

Improve your Craft.

If you have a Court practice, brief-writing is your craft: work to improve it.

I have to work hard at my writing to improve it: speaking and informal writing is so much more natural to me than the demanding, concise and structured writing that appears in the briefs of the best legal writers. 

So I keep my goal simple: to make each brief  better than the last. But I practice a LOT.  And I read a lot.

There are a LOT of books printed on this topic, and I'm going to link to a few below. Invest the time to study brief-writing, and work to improve it.  

"Winning on Appeal: Better Briefs and Oral Arguments"

"Making your Case: The Art of Persuading Judges"

"The Winning Brief: 100 Tips for Persuasive Briefing  in Trial and Appellate Courts".

"Federal Appellate Practice: Second Edition"

If you are in trouble, get help.  

Especially when we are just starting out, we all tend to bite off more than we can chew.

Know your limits, know how many cases are too many, and don't take more than you have the time to work. If you don't know how many you can handle, talk to other attorneys who have a court practice and get a sense for the time and work involved.

If you have too many cases at the CAVC, and need a hand with some of them, call me - if I can help, I will. Don't wait until the last minute - give me some time to jump in and see where and how I can help. For that matter, call any CAVC attorney who has a mature docket and experience. We are a small bar and I like to think we have each other's backs.

If you fall ill, or have to go to the hospital, have a contingency plan ready to go.

A simple piece of paper listing your cases, your clients contact info, and the court and opposing counsel contact info can be enough for a contract attorney to come in and stay your docket while you are in the hospital. Whatever you do -- don't wait until disaster strikes. Do something - anything - now to be ready for the unexpected absence from work.

Listen: attorneys have the 4th highest suicide rate by profession. 21% of attorneys self-report as "problem drinkers".  28% report they are dealing with depression.

Don't let that stuff fester. Reach out to a trusted colleague, a friend, a doctor -- anyone -- for help. 

PS...This past Monday, on Facebook Live, we talked about taking care of the most important asset at your firm: you. Watch it below:

 

3) Don't just say "Due Process" violation, prove it. 

This post is already too long, but I want to mention this. 

The veterans' bar is very quick to jump up and attach the label of "due process violation" to any number of VA practices.

And, we are probably 100% right.

But, as the brief in this case shows, saying "due process violation" is not going to win your case and its not going to win you any points with the Court.

You have to PROVE due process - there is a very specific test, which I will talk about later, for proving due process violations under the 5th Amendment of the US Constitution. 

To apply that test, you have to make some pretty thorough arguments: consider the potential property or liberty deprivation at risk, other procedural safeguards and their effectiveness, and the public and government interest.

If you have a BVA decision where you believe the VA or BVA committed a Due Process violation and would like to appeal it to the Court of Appeals for Veterans Claims (CAVC), please contact us by submitting the BVA decision here. 

Case Details

Link to the CAVC Single Judge Decision on the CAVC Website.

Link to the BVA Decision on CAVC Website.

CAVC Judge: Judge Coral W. Pietsch (link to bio on CAVC website)

OGC Attorney: James R. Drysdale

Veteran Representation at CAVC: Maxwell D. Kinman

Board of Veterans Appeals Veterans Law Judge:Michael E. Kilcoyne

Regional Office: Hartford, Connecticut VA Regional Office

Vets’ Rep at BVA: Disabled American Veterans (DAV)

Date of Decision: March 5, 2018

 

About the "VA Form 21” Blog

Written by attorneys, for attorneys, VSOs and agents, the VA Form 21 Blog will keep you current on changes in veterans law, teach you the advocacy skills you need to get better results for your client, and teach you the business skills you need to operate a financially viable law firm representing veterans.