New York State Pro Bono Opportunities Guide
Casualties of War
New York Lawyer
February 22, 2008
By Claire Duffett
The American Lawyer
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When Sergeant First Class Norris Galatas drove over an improvised explosive device in Iraq in May 2006, it took less than a second for shrapnel to tear all of his organs other than his heart. Only after months of treatment at Walter Reed Army Medical Center in Washington, D.C., could Galatas eat solid foods again. And it wasn't until two years later that the Army agreed that Galatas's injuries earned him disability benefits.
In that respect, Galatas was lucky. Because he had legal representation throughout his medical evaluation board hearings, the Army changed Galatas's disability ranking from 10 percent, which provides a small loan, to 90 percent, which provides lifetime benefits for him and his wife. "We made enough noise so they focused on it, and the doctors reevaluated the records," says Ehran Halse-Stumberg, a King & Spalding associate who represented Galatas.
Attorneys advising clients in administrative proceedings may sound like nothing new, but in the past, big-firm lawyers rarely provided this sort of representation to disabled veterans. After The Washington Post exposed poor conditions at Walter Reed about a year ago, though, large firms began a concerted effort to provide services to them.
Three advocacy tactics soon emerged. Some firms, such as Morrison & Foerster, sought to challenge systemic problems in how the military and the U.S. Department of Veterans Affairs (VA) treat disabled veterans. Others, such as King & Spalding, focused on helping newly returning service personnel from Iraq and Afghanistan avoid filing errors that can stall applications for years. Still others, such as Covington & Burling, opted to help clear a long backlog of claims by representing veterans from prior wars.
These categories are not rigid. Many firms are engaged in combinations of these activities, or all three. But they all have the same purpose-to mitigate the nation's failure to support its injured service people. The VA's current backlog is estimated to be 1 million claims. Many claimants await their rulings on the streets: Former service members are believed to make up about a third of the nation's homeless, the VA says.
A series of missteps created and prolongs the veterans' plight, says Gordon Erspamer, senior counsel at Morrison & Foerster. For one, he says, the military regularly mislabels victims of combat-related posttraumatic stress disorder, traumatic brain injury, and depression as suffering from a preexisting "personality disorder" so they can be dismissed from duty without access to free health care or disability benefits. In July 2007 Erspamer filed a class action on behalf of several veterans' advocacy groups in federal district court in San Francisco. The suit asks the court to require that the VA immediately spend $60 million to help process roughly 600,000 claims by class members. The trial ended May 2; a ruling has not yet been announced. (Update since publication of this issue: On June 25, U.S. district court judge Samuel Conti ruled that Iraq veterans suffering from post traumatic stress disorder should seek relief from Congress, not the judiciary. The Am Law Daily reported on the decision and the case.)
"It's like trying to change the direction of a battleship," Erspamer says of his efforts to institute systemic reform. "There's so much inertia in one direction."
If that's the case, Covington senior counsel James McKay, 91, has been turning the wheel longer than anyone. When the VA established a special U.S. Court of Appeals for Veterans Claims in 1988, McKay - a World War II veteran - was one of the first lawyers appointed to represent clients. At that time, the appeals level was the first place a veteran saw an attorney: A Civil War-era federal statute prohibited veterans from paying for legal counsel. Although pro bono representations were permitted, the statute created a dynamic in which nonlawyer advocates provided representation, or veterans proceeded pro se. "It just wasn't on [firms'] radar," says William Mailander, general counsel of Paralyzed Veterans of America. The ban on paid legal representation stayed on the books until 2006, when Congress repealed it, in part due to lobbying from McKay.
Now that they see the need, most lawyers opt to address claims individually rather than tackle the system itself. With the help of his lawyers, Galatas's case was resolved in two years. But it takes an average of five years for disability rankings to be considered. If the case is remanded, the process usually takes longer. And if the claim lacks proper medical evaluations or is filed incorrectly, the chance that a service member will ever receive compensation virtually disappears.
Having a lawyer to oversee a veteran's claim maximizes efficiency, Mailander says. In December the National Veterans Legal Services Program (NVLSP) began organizing a pro bono network, Lawyers Serving Warriors, to provide counsel to returning soldiers as soon as they leave the military. (The project was officially announced in late June.) The group has trained more than 400 attorneys from 60 firms. Although it has placed only 15 cases, it is preparing to assign another 70.
In addition, lawyers from King & Spalding, Foley & Lardner, and Dewey & LeBoeuf have formed a separate coalition aimed at helping returning soldiers from Iraq, Afghanistan, and other current conflicts. The firms came together in June 2007 through a partnership with another nonprofit, Disabled American Veterans, to provide free legal representation for injured soldiers at Walter Reed.
Other firms have targeted veterans with claims pending from prior wars, some of whom have waited decades for disability benefits. Last fall, attorneys from Covington; Mayer Brown; Howrey; and Wilmer Cutler Pickering Hale and Dorr were trained by an affiliate of The Bar Association of the City of New York to help Womble Carlyle Sandridge & Rice, which had an existing veterans pro bono program. The firms assisted Womble in representing an initial 60 service people from previous conflicts. About 250 lawyers from 30 firms subsequently joined the effort, and the group continues to place cases, says Carol Bockner, pro bono director for the bar association.
Still, the need for pro bono lawyers far outstrips the supply. Reed Smith counsel Jesse Miller, an Army National Guardsman who represents service personnel returning from Iraq, estimates that only 1 percent of veterans currently have an attorney. With more lawyers signing on to help, he expects this percentage to increase, albeit slowly.
NVLSP director Ron Abrams says that despite the push from firms, widespread resolution of claims will happen only when major changes to the system are implemented. In May 2007 Abrams testified before the House Committee on Veterans' Affairs that the VA's work measurement system encourages premature adjudication of claims without proper analysis. The VA provides a reward system that grants points for various actions, leading its employees to remand or dismiss claims rapidly. Abrams testified that the speed correlates inversely with quality. "A manager is happy when the worker denies a claim three times and takes three work credits," he says. "Temporarily you've cut the backlog down, but because there are so many appeals from the premature denials, they come back in some shape or form."
Balancing speed with thoroughness is a constant challenge for a system overwhelmed by claims, says Mailander, who before joining the nonprofit in the mid-nineties held positions as an attorney with the Board of Veterans' Appeals, the Coast Guard Chief Counsel's Office, and the Department of Veterans Affairs General Counsel's Office.
"There's a tremendous amount of interest in the pro bono community to help, but there are a million claims," Mailander says. "The lawyers are going to help individuals, but in terms of improving the system overall, I don't think they're really going to make a dent."
For now, outcomes like Galatas's will remain the exception, not the rule.
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