Hiring a Veterans Attorney at the Court of Appeals for Veterans Claims is a Really Smart Move.
When you receive a decision from the BVA, you are really going to want to consider hiring a appellate veterans attorneys to present your case to the Court of Appeals for Veterans Claims.
Long time followers of the Veterans Law Blog® will find this comment unusual, as it is RARE that I tell a veterans to hire attorneys – in most cases at the VA Regional Office and the BVA, a veteran who uses his head and applies a little “elbow grease” to the problem can overcome MOST problems they will encounter trying to prove service connection in the VA Hamster Wheel.
But there is ONE time where I think the smartest thing a veteran can do is seek out and hire the most experienced and accomplished veterans lawyer that they can find: when it comes to appealing a decision of the BVA denying your claim, you will want a trusted appellate attorney on your team.
Why do I say THIS time is different from all the others?
In a sentence, because….
Veterans Attorneys are prepared to handle the Adversarial Proceedings at the CAVC.
Because the process at the Court of Appeals for Veterans Claims (aka, the “CAVC” or the “Veterans Court”) is … officially … an adversarial process, you will want to consider bringing on someone who has been taught how to advocate in an adversarial setting.
The word adversarial does not mean angry, and it does mean antagonistic….although some of the attorneys and leadership at the VA’s Office of General Counsel (VA OGC) have a gift of making CAVC appeals antagonistic and angry. An adversarial process is a quintessentially American phenomena: the philosophy behind it is this:
The best way to get to the TRUTH of a matter is for 2 parties to a dispute have a full and fair opportunity to present their arguments to an objective trier of fact, governed my closely monitored rules.
Think of it like a football game.
Football is an adversarial contest, to be sure. The Cowboys and Redskins and the Steelers and the Ravens are 2 of the most contested rivalries in the NFL. They go at it hard, and what keeps the contest fair is strict observance of the rules. That is what an adversarial process is – and more often than not, the REAL champion emerges from the contest.
But, I digress.
The reason it is important to have a veterans lawyer on your side at the CAVC is that the VA is going to have a lawyer on their side, and their lawyers (while mostly decent professionals) have been known to play “lawyer-ball” just to win their appeal.
There is really no downside to having a veterans attorney on your team at the CAVC.
Veterans attorneys traditionally do not charge the veteran fees for representation at the CAVC. If the veterans attorney succeeds (or substantially prevails, to use a legal term of art) than the veterans attorney can file a petition for the VA to pay his or her actual hourly attorney fees under the Equal Access to Justice Act (EAJA). This does not come out of your past due benefits. It is paid out of the VA’s own operating budget – out of the VA’s pocket.
Now, having said all that, there are smart ways to go about hiring a veterans attorneys at the CAVC.
First, I recommend you pick up a FREE copy of the Veterans Law Blog® Field Manual “How to Choose a VA Claims Attorney” and learn how to make the BEST choice for hiring a veterans attorney that you can.
Second, read the rest of this post, and understand the various different types of veterans attorneys that may want to represent veterans at the CAVC. No one is bad or good in general, but for your case or appeal, one or more types may be ideal or horrible. That’s the whole point of posts like this – to give you an idea of the unique and different types of practices of veterans attorneys at the CAVC and allow you to decide which type is best for YOUR unique appeal.
CAVC Veterans Attorney Type 1: The “Churn & Burn” Firm
Here are 2 simple realities that you should know by now.
Fact 1: About 70-80% of BVA decisions denying a veteran or survivor benefits get reversed or remanded by the Court of Appeals for Veterans Claims for legal or factual error.
Fact 2: Remands from the Court of Appeals for Veterans Claims are handled faster than any other type of remand, and yield some of the most successful outcomes on remand.
Fact 3: For now, the law requires that a veterans attorney offset any EAJA fees from a contingent fee award on the same issue at the VARO or BVA.
Now, attorneys are smart. They see facts like these and realize that there is money to be made in loading up a caseload with CAVC appeals, moving them quickly through the Court’s docket, billing low EAJA fees, and “cashing-in” on the win on remand at the VARO. And there is NOTHING wrong with a lawyer making money – because when they do, so did you!!
That said, there are a couple firms that handle this strategy very well. There are others that are causing some problems with their approach.
First, if your BVA decision denying veterans benefits doesn’t fit the “model” of a case that they can churn quickly at the CAVC, they deem it “too risky” and reject representation. Ask them for a referral to another veterans attorney that might handle this type of appeal if they reject you. Or check out the list of veterans attorneys on the NOVA website.
Second, they push fast on the case at the CAVC, presenting one or two errors that will get a quick remand, and often ignore the rest of the claims or errors. A lot of solid claims and legal errors go unchallenged (and thus waived) because a firm opted to go for the one that would fare better for the bottom line on remand at the VARO or BVA.
Third, they low-ball EAJA fees. As of the writing of this post, I am getting close to my hundredth appeal at the CAVC. I have handled several appeals to the Federal Circuit Court of Appeals, including oral argument. I have handled appeals to the US Fifth Circuit Court of Appeals and orally argued there as well.
Except in the most unusual of cases, it is IMPOSSIBLE to thoroughly represent most veterans in an appeal of a BVA decision to the CAVC for less than $2,000. At an un-enhanced EAJA hourly rate of $125/hr, that works out to about 12 hours of work. 12 hours isn’t even enough time to review the Record Before the Agency in most appeals, no less spot all the legal and factual errors, assess the strength of each, decide which are in the client’s best interest to pursue, research the legal merits of each argument, draft pleadings, etc. These are the types of things that the professional appellate veterans attorney will do, every single time. As a result, it is not unusual for a competent appellate brief to take 30-80 hours to research, draft and write briefs, prepare and conduct oral argument (where appropriate) and secure a (hopefully) favorable outcome of the veteran.
Here’s the ‘vig’ in this strategy: by finding the “quick-wins” at the CAVC, and low-balling EAJA fees, these firms maximize their profits at the VARO or the BVA on remand. Add a little “rinse and repeat” and you have a machine that produces profit. Like I said, there are some law firms that do this AND get great results for veterans – and a couple really great attorneys use this model in their practice. Nothing wrong with the strategy, at all.
Just know whether the firm you are talking to is focused on getting good results for the client, or getting good results for the firm. And know that if you get the latter type of firm, you can get hurt.
Who is hurt? Most times, the only real harm is that the Veteran ends up paying MORE for the lawyer in a contingency fee because the EAJA offset was so low, and they may miss out on a claim or two that is important to them.
Download and Read my FREE VA Field Manual “How to Hire a VA Claims Attorney”, and learn how to choose an attorney based on the criteria that are MOST important: experience, effectiveness, skill, & motive.
CAVC Veterans Attorney Type 2: The “Same as Before” Firm
A number of veterans attorneys at the CAVC are representing a veteran because they represented the veteran at the BVA and/or VARO.
In other words, the same veterans attorney advocates for the veterans throughout the appellate process.
I handle a lot of cases like this, so there is nothing bad about it. I will say that it is a LOT harder for me to represent a client at the CAVC who I have represented for YEARS, sometimes decades, at the VARO and BVA. I get to know my clients very well….after a couple years, they start to feel like family. I become emotionally invested in winning their claims and appeals for them. The CAVC is a win-or-go-home situation: there is a lot riding on a win at the CAVC.
The problem is that most cases at the CAVC aren’t won or lost based on the facts – they are won or lost on the law.
Persuading the CAVC on the law requires a high degree of what I call “dispassionate objectivity” – the ability to argue the LAW of your case, focusing on the legal strengths while acknowledging the flaws and weaknesses. This is hard for a veterans attorney to do when he or she has been working with a client for 5, 8, or 10 years …. and when that veterans attorney knows just how much is riding on a favorable decision granting VA Benefits.
More often than not, these benefits are life-and-death for veterans and their families.
I think that if you have a particularly good veterans attorney or VSO representing you at the VARO or BVA, and you have to go to the CAVC, it may make sense to talk to your attorney about hiring an appellate professional to help at the CAVC (or, in some cases, the Federal Circuit Court of Appeals).
This is not something to be afraid of – you don’t have to give up the awesome veterans attorney you hired at the BVA by hiring a different veterans attorney at the CAVC.
In fact, this is common procedure in the rest of the legal world. An attorney who I’ve known for 15+ years is an appellate specialist for personal injury cases in a particular state. He is hired by the trial attorney for an injured person to consult with the trial attorneys when they are in the Trial Court (our equivalent is the BVA). The appellate professional helps ensure the case is properly set up for an appeal, by preserving legal error and preventing factual error.
My law firm does this sort of thing for VSOs and agents and a couple attorneys. If you want to bring an appellate professional on board early to help ensure your case is prepared for a CAVC appeal if you lose at the BVA, contact the firm by clicking here.
Bottom line, you have a LOT more choice than you think when it comes to hiring a veterans attorney at the CAVC.
You do not HAVE to use the same attorney at the CAVC as you did at the BVA.
The VA does get really confused by multiple attorneys in a claim – in fact they say its impermissible in one of their regulations – but the VA and the CAVC are completely distinct bodies and your attorney at the CAVC need not designate as your representative at the BVA or VARO.
You can hire a different attorney for your CAVC appeal and KEEP the attorney you like at the VARO and BVA – your attorney or VSO knows how to set this up.
If they don’t, have them reach out to me and I will teach them how to do it. It’s completely ethical and often makes really good sense – the veterans attorney at the BVA and/or VARO can focus on proving and winning the rest of your case while the veterans attorney at the CAVC can focus on fixing the errors in claims and appeals that were denied by the BVA.
CAVC Veterans Attorney Type 3: “The Newbie” Lawyer
It used to be that the way to “cut your teeth” as a veterans attorney was to take cases at the CAVC. In fact, that’s how I got my start. So nothing I say here is meant to “bash” anyone.
Instead, I want to make a specific point that a good number of veterans attorneys at the CAVC are new to the practice and don’t know the ins and outs and nuances of the law — at the appellate level — that will enable them to make the best arguments.
Last week alone, I read 3 briefs by newbie attorneys who lost their appeals (handling one of their first cases as a veterans attorney) because they didn’t know how to focus the issues on the appropriate standard of review at the CAVC, or because they were unaware of an obvious legal error staring them in the face.
By all means, consider hiring a “newbie” – this is how rookie veterans attorneys become experienced veterans attorneys: by taking cases.
But make sure the newly minted veterans attorney has a desire to stay in this practice area, and aren’t just using your case as a “lemme-see-if-I-like-it” experiment…or trying to turn your case for a quick EAJA buck.
CAVC Veterans Attorney Type 4: The “Appellate Professional”
Law is written by appellate lawyers.
Veterans law is no different.
Look back at some of the biggest cases that have changed the whole contour of Veterans law, and you will see that 95% of those cases came about because a veterans attorney saw a problem in the law, worked with a veterans attorney at the VARO or BVA to frame the issue and facts as early as possible, and then argued the case when it got to the CAVC, the Federal Circuit Court of Appeals or the US Supreme Court.
There are a small number of veterans attorneys that are appellate professionals (far more of the attorneys that handle appellate matters are one of the other 3 types listed above).
They know how to spot the REAL legal issue in a case – the one that is REALLY holding the Veteran and the veterans attorney back from succeeding at the VARO or BVA.
They know how to review the record on appeal and find the key facts that need to be argued.
They know how to write briefs that persuade the court to find for their client.
How do you find a veterans attorney who is an appellate professional?
Here’s a few ways:
- Look for the attorney that ONLY represents Veterans at the CAVC, Federal Circuit Court of Appeals and the US Supreme Court. It’s not a fool-proof method, but it gives you an idea that the particular veterans attorney is trying to be a master craftsman at the appellate courts, not a jack of all trades at every level of the process.
- Look at the EAJA Fee petitions filed by veterans attorney at the CAVC. What you are looking for are invoices that demonstrate a firm that is actually WORKING a case, not forcing it quickly through the system. One line task-descriptions, vague explanations of time billed, lack of record review time, and low fee totals are all indicative of sloppy “churn-and-burn” appellate work. (I have found it next to impossible to competently and thoroughly handle a veterans appeal at the CAVC for less than $5,000 – 7,000 in EAJA fees, though I negotiate that price downwards with OGC attorneys when appropriate).
- Read the briefs filed by a particular attorney (you can find every pleading filed by any veterans attorney at the CAVC by visiting on the CAVC Docket Search page. Compare them to other briefs filed by other attorneys. In comparing the briefs of 2 attorneys, you can almost immediately identify which is written by an appellate lawyer, and which is written by an attorney just doing a copy-and-paste job on the same arguments raised at the BVA or VARO.
Bottom line about Veterans Attorneys – at the CAVC or anywhere…..
Know who you are hiring.
Don’t just hire the big name in veterans law. Don’t just hire the attorney you worked with at the BVA. Don’t just hire the one your VSO says that they recommend.
Do your homework: download a FREE electronic copy of the Veterans Law Blog® VA Field Manual “How to Choose a VA Claims Attorney”, and learn how to choose the attorney that is best for your CAVC appeal.
If you prefer hardcover books, you can buy a paper copy of this Veterans Law Blog® VA Field Manual by clicking here.