The military veteran community has lots of legal needs, including legal assistance in handling veterans’ claims stemming from their service. These brave men and women often lack access to experienced advocates to help in this area, including the appellate process. In this episode, Todd Smith and Jody Sanders discuss veterans’ claims and appeals with Chris Attig, a founding partner of Attig, Curran, Steel. Chris and their team are some of our nation’s leading veterans’ advocates and are well-versed in the process. Chris shares their experience and offers tips to practitioners who might have an interest in gaining appellate experience while helping one of the most underserved populations. Chris also discusses their military background and path into appellate law as well as their firm’s focus on attorney well-being.

Listen to the podcast here:

Handling Appeals from Veterans Claims | Chris Attig

Our guest is Chris Attig from AttigCuranSteel. They are based out of Little Rock, Arkansas. They are a Texas lawyer, and we’ll let them tell you more about that. Chris, welcome to the show.

Thank you for having me. I’m going to jump in real quick and thank you all for a wonderful show. I’ve listened to you all for quite some time. There are two things I’ve wanted to tell you. You guys are doing a great service to the legal profession and educating about Appellate Law. Your breadth of guests is phenomenal, and it has helped me quite a bit in my own practice. Your interview style is phenomenal. I enjoy the interviews and I appreciate the opportunity to be on here and be a part of this.

Thank you. We appreciate the feedback too. We’re always happy to have some listeners come in and tell us they enjoy it.

We do appreciate that, Chris. Thank you so much. It is meaningful to us. Let’s do what we usually do, which is I’m going to kick it back to you and let you tell our guests about your background or where you come from. I know you’ve got some unique experiences that we want to talk about. Let’s launch into it.

I’ll try to give you a 30,000-foot battlefield view of the career here. I got out of the Army. That’s probably the best place to start. I got off active duty in 1997, and I didn’t have a clue what I was going to do with my life going forward from there. I spent a little time homeless and then bounced around from job to job. One day, I found myself in a warehouse in East Texas for Target sorting toothbrushes to go to different retail outlets. I decided it was enough of doing that. I sat down and spent a good bit of time focusing on what I wanted to do with my life. I ended up finding myself at South Texas College of Law down in Houston.

When I left school there, I couldn’t find jobs at the time. The only thing I was able to find was to work with the IRS. It’s not Tax Law, thank God. I did some Employment Law with them. I realized that there was an opportunity. There was nobody representing individuals suing the IRS for employment discrimination or suing for wrongful termination and those sorts of things. I broke out and started my own practice. A couple of years into that, I came down to Austin, Texas, and saw a CLE on Veterans Law by Bart Stichman, who runs NVLSP, the National Veterans Legal Services Project.

It was 2007 when they opened up the practice to broader attorney representation. After a one-day CLE, I was on the drive back up to Dallas, and I thought, “This seems well-suited for what I wanted to do with my life.” I made the decision to flip the practice. It took a couple of years to flip it from employment law to veterans law. I spent some time as a sole practitioner and I’ve seen the ups and downs as a sole practitioner. As a firm manager now with two other partners, we hit the highs and lows.

Somebody once told me that the quickest way to find bankruptcy court was to represent veterans, and they’re not wrong. I will tell you that but fortunately, I didn’t get that bad, but I’ve seen the lows of the profession. I’ve seen the highs of the business. We’ve reshaped our practice here in the last few years to focus heavily on the Appellate Law experience at the US Court of Appeals when veterans come into the US Court of Appeals for the Federal Circuit. That’s everything, the high notes of the career there. I’ll let you guys dive into where you want to explore from there.

I do want to back up because we are the Texas Appellate Law show, and you do have some Texas Appellate experience, particularly on the Supreme Court, will you talk a little bit about that?

When I was in law school, I took an opportunity to go over to Turkey. It was the summer before 9/11, and our law school in south Texas had a program with the University of Marmara in Istanbul. While I was over there, Chief Justice Tom Phillips was over there as part of that program, and he was doing some project with some lawyers over there to try to revise their penal code to modernize it. I had an opportunity to sit down and chat with the chief. I got to know him and talk with him intimately. I don’t know if that’s the best word for it. You don’t often get to sit down at a table and have lunch and chat freely with the Chief Justice of the State Supreme Court.

He encouraged me to apply for a program they had where a law student could come in and intern and clerk. I got accepted to that program. I transferred to the University of Texas law school for a semester and was a clerk in Chief Phillips’ office. That was my first introduction to Appellate Law and I didn’t realize then that the hook had been set. I had an opportunity to sit down there. I don’t remember if it was mandatory, but it was strongly encouraged that all his clerks come down and watch every oral argument. We all sat down there and watched, and it was a fascinating experience. Looking back on it, it is where the hook was set.

You came to UT as a visiting student for a semester and completed that program. That’s awesome. There are a lot of things to unpack from your self-introduction there. I want to go back even further and talk about your military experience. You mentioned being on active duty until ‘97. Had you completed your undergrad when you went in? Did you do it while you were there? How did that go?

I was in my first year of undergrad up in Scranton, Pennsylvania. I had a little bit of a problem with partying too much and studying too little, so the scholarships were lost in that first year. An opportunity presented itself to go and compete for a scholarship through the Army ROTC program there. I went to basic training in Fort Knox, Kentucky in the summer of ‘90. I was awarded a three-year scholarship, and then from there I went into the Army straight away right out of college.

I went in for my officer basic at Fort Sill, Oklahoma, and then not too long after, I found myself in South Korea. I was in the Second Infantry Division and spent four years on active duty doing a variety of things. I was always trying to get closer to the Infantry world. I went to Ranger School and spent a lot of time there and never got the tab, but spent enough time there to earn a couple of them had I applied myself. This is back pre-9/11. To get into the Special Forces was largely by invitation. I was invited to come to the Special Forces Assessment and Selection School.

I had a heart-to-heart with myself probably about a week before I was supposed to report and realized that this isn’t what I wanted to do with my life. That’s when I made the decision to get off active duty. I got off active duty in ‘97. I spent some time in the reserves and individual ready reserves all the way up to ‘04. That’s where I went through that rough period in the civilian world of trying to adapt that skillset or lack of any skillsets of the military to the civilian world.

In hindsight, you look back and think, “You go and become a lawyer representing veterans.” That was your experience. We all have heard about ranger school and how difficult all that is. I admire someone who has the tenacity to go through and accomplish that. What a neat way, I have to assume, for you to be able to relate to your clients. The fact that you were in active service, had that ROTC experience, and then went in and went to South Korea. What a wonderful tool I’m sure you have in your toolbox to be able to directly relate to your clients.

It’s a blessing and a curse because, in some ways, I can relate better to my clients. In other ways, it’s more of a curse because it’s the frustration. I’ve experienced the hardships of reintegrating into civilian life. Saying it that way is challenging whether you’re a peacetime vet or a wartime vet. It’s a huge challenge.

I’ve seen those struggles and I’ve seen how the law and veterans law broadly doesn’t consider that so much. It strictly sticks to this administrative regulatory interpretive scheme and leaves a lot of the humanity out, so it’s difficult for me to communicate sometimes to my clients what courts are trying to do when it looks like they’re overlooking the humanity of the situation.

It’s been fun. Sometimes I’ll chat with a vet. We had one client who was a Korean War vet, and so we spent hours on the phone comparing what Korea was like in the 1990s to what it was like in the 1950s. I’ve had clients that are former soldiers of mine that I led and that’s a unique experience in and of itself. To come full circle like that is pretty powerful in a lot of respects.

For those of us that don’t have familiarity, can you explain what are the types of veteran claims that you see and maybe walk us through and explain how the process works?

It’s a massive bureaucratic process, but the general concept is that when you’re in military service and you suffer some disability, that has a specific meaning in our practice area. When something happens to you in service that impairs your ability to get and keep work after service, you can file a claim for what’s called Service Connected Disability Benefits. There’s a host of other benefits that are available through the VA, whether it’s healthcare, caregiver programs, all sorts of different programs, vocational rehab, etc. We focus on that service-connected disability where a veteran’s injury in service causes something to happen to them later in life.

We pursue those claims. They’re rated and it’s much like a worker’s comp scheme. In a lot of senses, it’s rated based on the percent of your disability, and that translates to a monthly dollar amount, and that dollar amount can continue for the rest of your life tax-free in almost every situation. Those are the typical benefits that we pursue.

Over the years, I’ve worked with a lot of different types of clients. When I first started the practice area, I was looking for something that I could do that was, for lack of a better phrase, scalable in the sense that I didn’t have to learn the whole area overnight. I focused hard on specific types of claims like sleep apnea claims and veterans suffering from sleep apnea as a result of their service. I ended up writing a book, which I probably have to go and update. It’s been a few years since I’ve written it. It’s teaching pro se vets how to do it for themselves and grew a name for myself in that regard.

At the time, sleep apnea claims were considered a scam of Veterans Law. It’s not a real disability. It’s not a real disease, and that has significantly changed and has become a mainstay of many firms’ practices. Now, what we do is we’ve got the appellate practice and we’ve got an agency practice and we do different things on the agency side. This is when you file your claim with the VA. They review it, they make a decision, then you get an opportunity to appeal primarily to fulfill due process.

You get an opportunity for a hearing at the Board of Veterans Appeals if you want one, and then you get a decision. It goes before an appellate tribunal, the Veterans US Court of Appeals for Veterans’ Claims as a congressional court, and then the US Court of Appeals for the Federal Circuit reviews the Veterans Courts decision and, of course, the full-fledged US Appellate Tribunal.

At the agency level, we don’t work so much with sleep apnea claims. We’re working primarily with the victims of military sexual trauma. I’ll be direct and blunt. We work with a lot of vets who are not white men. In the system, veterans who are black, Hispanic, female, and veterans who identify as LGBTQ get lost in the shuffle.

Only 25% of veterans pursue their benefits through the VA, that’s a rough number, but that’s 3 out of 4 veterans who don’t. You can probably carve out 25% saying that they’re making enough money and they don’t feel the need to. In the middle ground, what we’re finding is a lot of veterans who are black, Hispanic, and identify as LGBTQ are scared of the VA. They’re scared to pursue those benefits because of the culture that exists there and the culture in the veterans’ community. We’re doing a lot of work to reach out to those groups to bring them into the fold to get them the benefits they need because they are, simply put, life-changing.

The claims that are made to the VA, are they made regionally or is it all directed in DC? I know that you practice in a lot of different places and have clients from all over, but where does your practice occur for the most part?

We do have an office here in Little Rock, which is where the firm’s primary office is. We’ve got an attorney, my partner, Alexandra Curran, up in Rhode Island. She has been practicing since 2012. Her husband served, and I always get confused whether it was Iraq or Afghanistan, but he was injured over there. We also have an attorney down in North Carolina. We have paralegals that work with us out of Florida and anywhere in the US we can work.

The claims themselves used to be handled regionally. Every state had at least one regional office for the Department of Veterans Affairs. Some states like Texas and California had more than one. They have changed that now, and now everything is handled through what they call a National Work Queue. Claims go into some big computer system and they’re farmed out to wherever. That’s largely been a good thing. There were some real disparities in the way veterans were treated. A veteran with PTSD in Texas might get a different rating than a veteran in Florida with the same degree of severity just because of the regional differences.

The National Work Queue was thought to iron out some of those differences. By and large, it has. There are still some real disparities that need to be addressed, but we can practice anywhere as long as we have a license in any jurisdiction and you have to go through a VA accreditation process. Time is the key thing with the VA. If you’re licensed as an attorney, you’re going to get accredited by the VA. It’s going to take the time that it takes the VA to get through that application process.

Short of that, I know a good friend of mine who practices at the Veterans Court in the Federal Circuit. He’s living in Spain. He works and submits his claims. He’s having a heck of a time proving up the cost of living changes for his fee from Spain. That’s a whole separate thing altogether, but he’s able to practice and do everything remotely. We see veterans from all over the country. I’ve got clients in Thailand and Germany. Everywhere that a veteran is, we can represent them and that’s nice, especially during this last pandemic where we’re restricted geographically. Our practice did not suffer because we still had the flow of clients all over the world.

The scope of your practice reminds me of immigration to some degree because once you’re in immigration, you can pretty much practice on a national scale. I hear echoes of having talked to some immigration lawyers over time where you can represent someone from anywhere, not only from anywhere physically but also the client. We see this trend toward the nationalization of practices and it seems like you and your practice area are ahead of the curve.

It’s a good trend. It’s going to be difficult to do in a lot of practice areas. You don’t necessarily want an attorney from Oregon or an attorney from Wisconsin representing you in a Texas Personal Injury Suit. They may not know the law, but in areas that are Federal in nature like immigration, it makes sense to have that broad geographic access.

There are a lot of similarities to immigration. I’m not familiar with it personally, but we worked closely with the University of Arkansas Bowen School of Law to develop a program to teach law students how to represent veterans. The professor in that program is a former immigration attorney and she’s always commenting on the eerie parallels between immigration and veterans law.

It seems like even at the administrative level, and then through the appellate process too, that there are a lot of parallels from my quasi-layperson standpoint.

That can benefit an attorney practicing in this area too because there are some key parallels between social security disability and veterans law or immigration law and veterans law. You can take advantage of those as a practitioner to diversify your practice by working with veterans who are having difficulty with immigration issues. Also, their disability or veterans who have issues with Social Security and also their VA claims. You can overlap and kill two birds with one stone, I suppose is the best metaphor I can come up with.

How does the fee side work? I imagine you work with a lot of financially vulnerable clients.

We do, and there are two primary fee structures. When you’re working at what we call the agency level, which is the initial/supplemental claim and appeal to the Board of Veterans Appeals. That’s an administrative process. When the veteran wins their claim, they’re paid what we call Past Due Benefits, what they sometimes call Back Pay. They’re paid from the date of their claim all the way up until the date of the decision.

If a veteran is 100% disabled, in a decision that came out today but they filed their claim a year ago, they would get a year’s worth of that 100% rating. We charge our fee as a contingency percentage of that. VA has a program for attorneys that will allow them to have the VA collect a fee as long as it’s not above 20%. They’ll collect it for the attorney, and that helps the attorney ensure that they can get some funds while they’re building their practice without having to worry about trying to collect from a veteran who is often economically challenged at the time.

When you get to the court, though, you have the opportunity to get fees if you substantially prevail in a court appeal. You have the opportunity to apply for fees under the Equal Access to Justice Act and the hourly rates are not that stellar. I’ve been licensed since 2003, so that’s over nineteen years as an attorney. My hourly rate is somewhere around $220 an hour. That’s low.

You can get in these cases and if you put the work into the case and if you stand behind your fee application when you make that fee application, you can make a profitable practice doing this. I don’t necessarily like talking about that. In the sense of profit, attorneys have to get more comfortable doing that but it’s completely possible to build that kind of practice.

You have to talk about it from a standpoint of having a law firm or running a law practice of your own is expensive. People don’t always appreciate what goes into setting up the ability to practice. I’m sure that for your clients individually, that’s not their frame of reference. You mentioned scale earlier. Are you able to apply scale concepts to your practice so that you can represent your clients more efficiently? How does that affect your fee application? Is the Equal Access to Justice Act a lodestar analysis? If you’re talking about measuring your worth based on the hour spent, that’s not always the true value of your services, right?

That is 100% correct. There are two pieces to that. Looking at the core practice side of it, we are locked into that lodestar formula. The Veterans Court established how they calculate that fee, cost of living adjustment based on the 1996 rates of $125 an hour or something along those lines. You adjust the base to the cost of living and then you’re selling your time. Is that the best way to compensate an attorney for appellate work?

The more I do this, the more I think that lodestar formula tends to preserve some disparity and preserve some favoritism for certain groups in the law. It makes it a challenge. I’d love to see the court exploring different ways to compensate attorneys for that. It’s going to be a long time before we shift a court that’s young in a lot of respects but conservative in a lot of other respects. It’s going to take a lot to move to that, but I’d love to see fixed fee appellate work. I’d love to see that it’s more based on stages or phases of appellate proceedings because they don’t all go to oral argument.

It is something we have to talk about, though, and that’s the first piece of your question. I had mentioned that I had this sleep apnea practice where we focused on scaling out sleep apnea appeals. Financially, it was a great practice area. The firm was doing great financially, but I didn’t have the first clue about how to manage a business. It was because of that the first iteration of the firm collapsed.

Since then, I’m more eager to learn the business side of things and to understand how it works. I do my best to explain to our clients how that business aspect works because they have to understand what they’re paying for. It’s not something that you call up a veteran and say, “We won your case. Give us 30%.” They need to understand how much went into that. There’s a lot of infrastructure in a firm to be able to do this work and to do it well.

Let’s talk about that a little bit. At the first level of the claim, is it more that you’re doing the documents? Is it evidentiary? Are there hearings? If you don’t mind, explain the process in a little more detail of what things you have to do at each level.

I could go thick in the weeds, and I’m going to spare you guys that torture because it is a draconian process for claims and appeals. That may not be the best descriptor, but it is incredibly cumbersome for a lot of veterans. It starts with filing a claim with the VA. We used to file them with a regional office. I’ve seen them decide in two weeks. I’ve seen him take two years to decide the initial claim. Not a lot of attorneys work at that level for a couple of reasons. First of all, you can’t charge a fee on a claim at the agency level until the VA issues its first decision. They get the first bite of the apple so to speak. That’s one reason.

The bigger reason is that there’s this whole network of veteran service officers around the country with organizations like VFW and DAV. The county veteran’s service officers in Texas are amazing and they have relationships inside the VA and often have offices right down the hall from the raters. They’re able to move and do things and claims that attorneys can’t. We leave that territory to them. They excel at it. They do a great job and we see all the folks who are disappointed when they get their decision and need to appeal. We don’t see the ones that the VSOs did right by and got the claim granted initially, and that is a large portion of claims.

Once you get that decision, there used to be a pretty linear appeal process. You file a Notice of Disagreement with the VA and then they package your appeal. You go through a process of perfecting this appeal through certain filings and then it goes to the board. You can request a hearing or not and that used to be the process. By 2015, that process was bogged down. They had something close to 500,000 claims and backlog and appeals and backlog. They call it the Hamster Wheel because the case we get up to the board, the board would say, “Things have changed because it’s been sitting here for eight years. The disability has changed. We need more evidence.” They’d send it back and get more evidence.

They go all the way back up. I was representing World War II veterans when I first started. I have been in this process. One of them had been in the process. In fact, we lost a veteran who served in Korea. It was 1957 when he left active service, and he’s been pursuing his claim ever since then. It took until 1986 to get the first decision. Some bureaucratic inefficiencies caused that, but it was those inefficiencies that Congress came about in 2017 saying, “We’re going to change some things.” They changed the appeal process and now it’s very much like a three-dimensional chessboard. You have an opportunity.

You can supplement your claim. You can have a senior review officer look at it and you can file three different types of appeals to the board. If your claim has some connection to the old legacy process, you can use that process too. It is a complicated process, which can be both intimidating and exciting because you can learn how to use process and procedure to your client’s advantage. Those claims and appeals, the claims most of them they can decide in as quick as two weeks. Some take two years.

On average, most of the time we’re seeing decisions on original claims within 4 to 9 months. Most appeals to the board are in the old process of 5 to 8 years to get to the board. They have a hearing or have a decision on the record without a hearing. Now we’re looking at probably somewhere in the 3 to 5-year range. They still have an incredible backlog of the old style, the old legacy appeals that they can’t get out from under. It’s a daunting process. There are a lot of bureaucratic inefficiencies. There’s a cultural problem inside the VA. It takes a while to get through it.

To answer your question about what the lawyer is doing in that process, when we get a rating decision from the vet who said, “I shouldn’t be rated at 0% for my PTSD. I can’t even get to work.” What we do is we take that decision. We make the procedural choice and then we develop the appeal. A lot of times, that means getting statements from mothers, fathers, brothers, sisters, Army buddies, golf buddies, and anybody that can witness the impact of the disability. Getting medical records, packaging that up, and having independent medical examiners look at this, and render opinions about the relationship to service and severity of the disability. We file those packages either with the agency or with the board, depending on which chessboard we want to jump on to.

It’s not an appeal in the sense that you have a record that goes and they look at the records. You can supplement in evidence and bolster your claim.

Each of those different chess boards has different determinations of what the record is. For example, if you want to have certain types of appeals either what they call a higher-level review or if you want to have a direct review by the board, you’re locked into the evidence that was in the record at the time of the decision. Others on appeal, you can supplement the record within certain windows of time. The record in VA claims is a shoebox. Everything that happens in that claim goes into a big file. It used to be a box. They would put the paper in a box and then you would request the claims file.

You get the same veteran and it was a World War II vet that I was telling you about. We got his claims file and it was ten green boxes full of paper that we had to sort through to figure out what it was. There’s not a whole lot of chain of custody about what is in the record when it got there, how it got there and who put it there. For attorneys who like solving puzzles like that, this practice area presents no end to those puzzles.

The three-dimensional chessboard, at first I didn’t understand what you meant and I had this vision of Spock and Star Trek. The way you described it makes a whole lot more sense to me. It’s on that first level of the Board of Disciplinary Appeals. You mentioned the process. You go from there to the US Court of Veterans claims and you’re in a real court at that point.

man speaking to client, only shows hands

Veterans Claims: Our firm focuses on looking for errors in these cases that are going to have an impact.

Chris, one thing I was thinking about as you were talking was, “At what point are we dealing with less than an administrative proceeding and more of a court proceeding?” It sounds like maybe that’s the step when you go up to the US Court of Veterans claims. How does that process work? Do you want to talk about that for a little bit?

You’re exactly correct. Once you get a board decision or what they call a final board decision in a case, you have an opportunity. You can go back and file a new claim and start the whole hamster wheel over or you can appeal to the US Court of Appeals for Veterans Claims. We call that the CAVCs. Some folks call it the CAVC or the Veterans Court. It was created by Congress with the Congressional Court and there are nine active judges and several senior and retired judges that are still handling cases, but it is a traditional appellate court in every sense of the phrase.

They’re still so traditional that they’re stuck on page limits in their briefs. They haven’t moved on to word counts but that’s okay. We’ll deal with that. It is an appellate process. You’re looking at taking this board decision and arguing to the court whether or not they failed to consider a legal theory, whether that was arbitrary capricious, whether a factual determination was erroneous. You’re looking at traditional standards of review and traditional Appellate Law issues.

That was my question, the standard of review and how that works. That’s helpful to hear. Going through the traditional briefing process based on the administrative record.

We could break it down and appeal to the Veterans Court. I’d break it down into four phases. The first phase is what I call the Record Development Phase. The VA attorneys, they’ve got the Office of General Counsel up there in Washington, DC. They send us an electronic copy of “the record.” We look through it and try to make determinations about whether or not it’s complete or whether there are things missing. We dupe that out a little bit and then once that’s done, it moves to the next phase.

I want to call it more of a Mediated Resolution-type phase but you draw up a mini brief, a ten-page summary of the issue. It’s trying to cut to the heart of the issue of the case and try to persuade the government’s attorney that the proper thing to do is to join together in a motion to remand the appeal back to the board to fix some evidentiary, procedural, or factual error.

The last numbers I looked at is something like 70% or 80% of the appeals at the court go back on a joint motion to remand. It’s a pretty significant number and that speaks to how many errors the board makes. 80% of board decisions have either an error of fact or an error of law, and we have an opportunity to have them address that through the joint motion to remand phase.

That’s your opportunity, it would seem, to make a difference for your client as an advocate. It is identifying those errors and pointing them out and bringing them not only to the court, but also to the government’s lawyer.

It’s tricky because some competing interests are going on there. When I get a case, I look at it and I take my mini briefs or what we call Rule 33 Memos, and take it to the government’s attorney to talk about it. In any case, there are so many mistakes by the board that there are enough mistakes in there to support a remand back to the board, which is a fee-generating decision. In theory, I could argue that there’s an error and needs to go back. That error may not fix the veteran’s problem, it may be going back for some administrative thing that won’t end up fixing anything or changing anything, except generating a fee for an attorney.

Our firm focuses on looking for errors in these cases that are going to have an impact. A lot of times, those issues are statutory interpretation, regulatory interpretation, failure to consider the correct law, failure to apply the correct law, and those traditional appellate issues that don’t lend well to remand. We ended up briefing a lot of cases and moving out of that phase of an attempted resolution and into the actual brief where we can fix the problem.

To me, it’s a double-edged sword. I had one case where we were offered a remand in a case but we had a real significant statutory interpretation issue that needed to be resolved. The client and I went back and forth for weeks trying to decide, “Do we go to briefs on this and argue the interpretation issue, or do we take the remand and get you back there to have an opportunity to fix it with an open record?” Those decisions are tough. It puts the attorney’s interest sometimes in getting a quick fee against the veteran’s interest or the veteran’s interest in getting a quick outcome versus taking a long time to get a better outcome. It’s a lot to consider.

Does that court have a rendition power? You mentioned statutory interpretation. Is that always going to be a remand for the board to reconsider under the correct interpretation of the statute? What I’m asking is, is there ever a time where you get exactly what you want out of the court of veterans claims and your client’s case is over to his or her benefit at that point?

The Veterans Court has the authority to grant relief ranging from the remand authority. They can reverse the determinations of the board. In certain scenarios, they can affirm the decision, they can find an error and affirm on harmless error grounds. There are some writs that you could pursue there like the petition for writ of mandamus, an option that’s open for unreasonable delays in the underlying proceeding.

The court does not like using its power to reverse, and it has been a bone of contention with practitioners. Probably out of 100 clients that we take to the court, I bet 30% of them end up back at the court because the board made a subsequent error after the initial remand. In fact, some of our clients have been back 3 or 4 times because the board can’t get the factual findings correct, not correct but made. They can’t make the factual findings. They can’t address the correct law and so it gets questionable whether that remand power is doing anything, but the court is loath to use its power to reverse but not so much in the Federal Circuit.

It’s hard to win an appeal in the Federal Circuit. Overall, the statistics are something like 2% of appeals of the Federal Circuit get a written decision. Most of them are Rule 36. They’re issued a decision without an opinion or a decision and you get the blank form that says, “Appeal denied under Rule 36.” Most of them are like that but when the Federal Circuit does issue a decision, they are not hesitant to use their reversal power if they feel it appropriate.

We won a case and it was late 2021. We’ve been working on it for about five years involving a veteran who was exposed to some chemicals while he was in Desert Storm. Those chemicals caused some pretty significant endocrine disruptions resulting in weight gain. He was trying to service-connect to what ended up being a pretty disabling level of obesity. The VA said, “Obesity is not a disability.”

We fought for several years to get all the way up to the Fed Circuit. They agreed with our position not necessarily that obesity is always going to be a disability, but it’s something that the VA should consider so they were willing to reverse the board in that case and say, “We’re reversing your finding that obesity is not a disability. We’re not saying it is, but you have to consider it.” They’re far more inclined to use that power to reverse than the Veterans Court.

Who are the members of the board that hear these things? Are they appointed? Are they government employees? How do they get to be in that job?

They’re Federal employees. They’re GS-level employees. The actual position description is a hearing officer. I don’t want to speak out of turn because they’ve changed stuff lately, but they call themselves Veterans Law Judges. They now show up in robes, for what that’s worth, at the hearings. It’s a little bit corny to me but it is what it is. Here I am wearing a tie and I’m on a podcast so maybe I’m the one that’s being corny. They’re Federal employees and attorneys. There are some good judges who are good people but as a whole, they are not well trained and the caseloads are high. Changes in the law take a long time to get fixed at the board so we see some bad decisions coming out of there. They’re GS-level employees, not even SCS level.

From there you go to the Federal Circuit, and this is territory that’s a little more familiar to most of us who practice Appellate Law. Although I have yet to make an appearance in the Federal Circuit in my career and probably never will. How does that work going between the Court of Veterans Claims and the Federal Circuit? At that point, you are talking about traditional standards of review and traditional briefing and even word count limits as opposed to page limits and all that sort of thing. Let me ask it this way, what’s the review process for the US Court of Appeals for the Federal Circuit?

two men talking over paperworks

Veterans Claims: There’s a steep learning curve to catch up with the law, but if you want to learn appellate law get in and start arguing cases.

It used to be a Federal Claims Tribunal. It was within the Federal Circuit’s jurisdiction. Sometimes that trickles up still too. What happens is you file your appeal. It’s like what it would be in the Fifth Circuit, local rules aside, etc. It’s like any other appeal. You get in there, you file your docketing statement, you follow those rules and you’ve got a briefing schedule. You file your brief, you get an oral argument by right in the Federal Circuit, which is a fascinating opportunity for anybody looking to get in and cut their teeth on Appellate Law straight away.

The Federal Circuit is a formal court. Even going into the courtrooms in DC, inside of the Federal Building feels like this old law feeling to the place. It’s dark, dim, noble wooden furniture. It’s an awesome environment to be in, in a lot of sense. It is a traditional court. You get assigned a panel of three judges the morning of your oral argument, you get in there, you make your argument, you’ve got fifteen minutes and you can reserve some time for rebuttal.

It’s everything you expect it to be in an appellate court and you’re talking. The judges are hyper-focused on the standard of review at the Federal Circuit as they should be. It’s not so much the Veterans Court and that’s something that I hope will change over time is that they’ll be more inclined to talk about standards of review at the Veterans Court and apply them rather than a, “It sounds like it should be this,” approach sometimes.

The Federal Circuit holds you to the standard review and, usually, the first question out of the gates in oral argument is, “What standard of review are we talking about? How is this arbitrary and capricious? How is such and such affected in terms of de novo review of this particular matter?” They do not have jurisdiction to make findings of fact. They do not have jurisdiction to make findings on applications of law to fact. When you go to the Fifth Circuit, you’re looking at whether Veterans Court makes an error of law or a statutory regulatory interpretation decision and constitutional issues are fair game at the Federal Circuit.

There is a little bit broader ability to get into the facts and the application of law to facts in the constitutional law setting, but it’s rare to have a viable constitutional basis for an appeal at the Federal Circuit. It’s a traditional and strict court where the judges there are primarily doing a lot of patent work. You can sit for three hours before your argument comes up and hopefully you can keep your energy levels up while you’re listening to somebody talk about this drawing of that thing and this part.

I have no clue what they’re talking about half the time, but they’re incredibly savvy judges. To be able to do that work, you have to have an analytical brain and it shows through in the way they approach veterans law. It’s a sophisticated intellectual experience at the Federal Circuit, which can be a challenge sometimes for a guy like me who grew up in the artillery and intellect wasn’t our strong suit. It can be a little bit of a challenge at arguments, but it’s always a fun time. It’s always educational even when I get schooled by a judge, which happens from time to time more than I would like. I learn a lot from it and get better the next time.

It’s incredible to me having heard you take us through the entire process. From step one to step however you would number it going through the Federal Circuit. You are doing claims processing, fact development, and taking it all the way through to what appellate lawyers think of as traditional appellate work briefing and oral argument in a Federal appellate court. I had no idea the range of things that are required to do what you do. It’s so educational for us to hear about it. I’m grateful for you to come on and tell us about it. It’s awesome.

There are many things that I like about it, but one of my favorite things about it is that you can take whatever part of it you want. If you’re practicing in this area, the entry-level costs are low to get in. There’s a steep learning curve to catch up with the law but if you want to learn Appellate Law, you come in low entry costs, get in and start arguing cases. It’s not hard to find cases. It’s not hard to get cases to do this work. You can focus entirely on the Appellate Law practice of the Federal Circuit and make a good living. You can also focus on the entire process from soup to nuts and learn how to build a case that changes the law from the ground up. It’s like this case I was talking about with obesity that we won.

We took that shortly after it was at the board and realized from that case, that we could have changed the outcome of that case at a lower level had we had an opportunity to put some evidence in the record. We started taking cases at the original claim level so that we could build that record knowing that this is going to be an issue that the Federal Circuit is going to have to adjudicate. We can use that to develop our own appellate records as we go.

To me, that is what the practice of law and Appellate Law is seeing, not how to make the argument as to whether the lower tribunal made the proper decision, applying the standards of review. That’s a piece of it, but understanding how to use facts and evidence to build the arguments in the first place is what being an appellate lawyer should be all about.

It seems like a place where a younger lawyer could get a lot of great experience pretty quickly. It’s not a traditional path, but it’s one where there’s a huge need and they could get their feet wet in a good way.

It is and I found out about it late in my practice. I had mentioned earlier I clerked with Chief Phillips. I had such a good experience doing that, that I went back to South Texas the next semester and went in to talk to Dean Gerald Treece who passed but I was on one of his mock trial teams and I was like, “Dean, I want to go on to do the moot court.” He was like, “Come on down and do a tryout.” I did a little trial for a little appellate argument. He’s like, “Chris, stick with a mock trial. Don’t even try this stuff.”

That became my MO. I had an opportunity in my own private practice to take a case which was ironically an employment law case for a veteran who was claiming some veterans discrimination under a real small narrow statute that got up to the Fed Circuit. I had an opportunity to do an oral argument at the Fed Circuit. That was 2008. I was only practicing for a couple of years and I certainly only had my own firm for a couple of years and there I was arguing before the Federal Circuit.

If you’re a practitioner out there who’s new and you want to do Appellate Law and statutory regulatory interpretation, this is the place to cut your teeth and you can get in easily. There are some great mentor organizations out there, some of the best that I’ve ever seen. I’ve not seen a single firm that we know in this practice area that I compete with. There’s no reason to compete. We all help each other because there are so many clients and so many legal issues.

If you’re a new practitioner, you’re having trouble finding work as I did. When I first came out of law school, the only thing I could find was doing employment law with the IRS, no shame in that. If you want to do Appellate Law, there are organizations that can get you cases and put a case on your desk tomorrow and within four months, you can be arguing in front of the Veterans Court or the Federal Circuit.

What are those organizations? If anyone is reading that has an interest, how would they go about finding those cases and organizations?

The first place to go is what’s called the Veterans Consortium. They do a lot of different things but one of the things that they do is they have a program where, as long as you’re accredited to represent veterans and you’ve got a good solid license somewhere, it’s not been suspended or anything like that. What they’ll do is they will assign you a case that comes through.

They go into the court, they look at cases that have merit, that are veterans who are pro se they pull those out of the court and then they assign them to attorneys and a mentor that will help walk that person through. You can collect the fee under the Equal Access to Justice Act if you prevail so you have zero marketing costs. You call up, you get a case, you look at it and you work with your mentor.

Alexandra Curran is one of the partners at our firm and she’s one of the mentor attorneys. She teaches them how to be an appellate attorney in Veterans Law. That’s one of the organizations. If you’re wanting to be a little bit more aggressive. What I did when I first started building my appellate law practice is I would comb the docket at the Veterans Court and pro se practitioners that have their addresses. We got our mailer approved by the Texas Bar Advertising Committee so that we could send out a letter saying, “We see you’re pro se. We do this work. If you want to talk to us, here we are.” We’d send that out and some of my first cases came from those.

25% of the cases at the Veterans Court are still pro se veterans and that doesn’t sound like a lot until you hear that there are almost 8,500 cases a year at the Veterans Court. There’s no lack of clients out there. There are other organizations that I could rattle off, a whole list of them. The National Veterans Legal Services Program, NVLSP, is a great program that can connect you with cases.

outline of people in suits

Veterans Claims: If you want to do appellate law, there are organizations that can get you cases and put them on your desk tomorrow. Within four months, you can be arguing in front of the veteran’s court or the federal circuit.

The National Organization of Veterans’ Advocates can’t connect you directly with cases, but they can get you the expertise and the knowledge that you need to be able to do this. They’re the gold standard. In the interest of full disclosure, I am on the board of directors for that organization so everything that I say that’s good about them comes from that. They’re phenomenal organizations.

There are a lot of state organizations. You can reach out to your county VSO. Most VSOs or veterans service officers will not represent veterans in court. There are a lot of reasons for that but when they get their decision from the board, these organizations have no place to send them. You can go into your county VSO and start building that relationship and say, “When you get a BVA decision, let me take a look at it with a veteran. Let me see if there’s a basis for an appeal.” Take it and if you substantially prevailed in the court you can apply for fees under the Equal to Justice Act.

That’s super helpful to hear. Thanks for taking us through that, Chris. We’re transitioning now, as we get ready to wrap up. One thing I know that you have expressed interest in talking about is a topic that we’ve talked about many times on our podcasts. It’s important to continue to keep in public discussion and that’s wellness in the legal profession. You indicated that your firm is taking a unique approach to this. Will you talk to us about that a little bit?

The usual approach to things related to attorney wellness is when you go and try to read something, you have a problem. You have an issue you’re dealing with and you get online or you go to talk to somebody that the solutions are usually directed at the individual that’s suffering from the condition or the experience.

Firm owners and business owners have at least as large if not a larger share in solving that problem. We have taken that approach at our firm. We are going to prioritize our employees’ wellness, as a primary focus of what we do whether it be through the pay system. I’m a firm believer in feeding the ox that treads the corn but also in terms of doing the things for employees that give them the space. They’re giving us 25% of their lives if they even work a minimum of 40 hours a week. They’ve given us 25% of their lives. I can’t give them ownership. I would love to be able to give some of our paralegals ownership in a firm because they contribute as much to it. What we do in exchange is we try to create opportunities for wellness.

We pay 100% of their premiums for any health care. We give them a good benefits program there. We shut down the firm from the first week of December to the end of the year. We give everybody pay for those three weeks to go and spend time with their families, to be with their families over the holidays without having to worry about work. Somebody’s got to cover the phones and do all the little things to check the blocks. We rotate that to keep it fair but that’s one of the things. We give paid Federal holidays and paid family leave.

We make sure that whatever benefits the owner could take advantage of should be available to our employees as well. We’ve got programs. We signed up with Headspace to make mindfulness meditation tools available to all of our employees for free. They can get on there and they can do that. It’s been a game-changer in my life, in my practice and I want to pass that on.

There are a lot of things that firms can do beyond those small gestures of paying people what they’re worth. It’s not necessarily a small gesture, but there are things that we can do to systematically change the way the legal profession operates so that we’re putting our wellness first. You can be involved in a conflict, as lawyers always are, right, without having to sacrifice your mental, physical, financial, and emotional health. Those are things that are important. You can’t put the client first without putting your own wellness first.

That’s great to hear. I commend you for prioritizing your folks’ wellness because you’re right. Staff, support staff, and paralegals tend to be underappreciated in our profession and so I admire the way you all are handling that. That’s cutting edge.

I hope more firms pick it up. A big selling point of our firm when we’re hiring is that three-week break at the end of the year. I don’t know of another law firm that does that or any businesses that do that. If it works for France and Germany that you can take a summer off, why can’t you take the holidays off here? Why can’t you give people an opportunity to recharge their batteries? There are ways to do it. There are challenges associated with doing things like that.

We have a lot of clients who are victims of military sexual trauma, and that can be difficult to represent those individuals because sometimes that trauma can rub off on the legal assistant or the paralegal or the attorney. Providing the tools and being aware that could happen, the employees’ outbursts, lateness or absence from work, missing timelines, or whatever the case may be that could trace back to that.

It’s the employer’s responsibility to say, “We’re giving you this work to do. We’re going to give you favorable conditions to do it and we’re going to take care of you through the process.” We had a doc come on and we did a Zoom chat with our whole firm. She came out and chatted to us for about an hour about how to separate ourselves from our clients’ trauma so that we could do those cases.

The reactions that we got from some of the staff, attorneys and paralegals alike, to be able to say, “I’d never thought that I could do that. I never thought that I could say no to something.” We’ve got a lot of employees coming to us to say, “No, I can’t do that case.” I say that somewhat tongue in cheek but it is true. You start to realize that in the cases that we handle, even whether it’s veterans law translates to employment law and arbitration, any law, family law, particularly criminal law, you’re in the middle of a fight with a person who is in probably one of the worst experiences of their life. There’s no way that that’s not going to rub off on you.

We’ve got a couple of ways to cope with that. You can cope with a bottle, a needle, a snort or you could cope with it by doing some different things. I could learn mindfulness meditation. I can go hire a therapist and work with a therapist. I’m talking from the employer’s perspective. We have to recognize that when we hire attorneys to do a criminal law case or a family law case, that we’re putting them in the trenches of a fight, that they may not have the tools that they’re equipped to handle and it’s on us to give them those tools.

Good for you all for being so forward-thinking and keeping that at the forefront because it is so important and it’s something that is now starting to get talked about in legal circles. We’ve seen the impact of it for so long. Kudos to you all.

It’s been an experience and we’re hoping to continue to expand and do some more things like practicing law this way far better than I like practicing law. I’ll plant the seed with your readers out there. It’s far more profitable to do this too. There are some costs associated with it, but the profit gains that you get out of it are staggering.

Having a healthy well firm with people who are trying to be healthy well does improve productivity and improves efficiency. People think outside the box better. There’s more abstract creative thinking. We get some cool stuff from our employees who are looking at a case that had the time to take a day or two off and collect themselves. They come back in fresh rather than stressed out. It’s a far more profitable way to operate.

We’re reaching the end but our tradition has always been to end with a tip or a war story. I don’t know if you’ve got one you want to share with us. We’d love to hear it if you do.

I probably could bore you with all of them.

There are a few.

person holding the graphic of a person in a suit

Veterans Claims: Focus less on the bottom line and focus more on the dignity of the individual.

The number one thing that I would say is when talking to folks about Appellate Law, I did not come to this through any natural gift of writing, speaking, or arguing. If anything, I tend to be a little bit too punchy and flamboyant, and that is not what Appellate Law is necessarily designed to be. I would encourage attorneys that are getting into this to spend some time learning the craft. There is a lot of good material out there.

One of my favorites that I keep on my desk side is Judge Aldisert’s Winning on Appeal. I go to that. This thing is tattered and torn. I’ve gone through it so many times. In almost every brief, I’m there trying to figure out how to better apply my craft by learning from other folks. You had a speaker who was talking about teaching new attorneys how to learn formulas for new practice areas, essentially. She was talking about how you pull briefs and bankruptcy court to get a sense of what the customs and norms are and do those sorts of things.

The number one thing that I would say is to learn the craft. Put the time in. It’s fascinating. It can be fun. Don’t be afraid to do things. In one of the first briefs that I had, I was trying to be cute and put some goofy Dr. Seuss joke in there and have regretted it ever since. Don’t be afraid to do those things because that’s how we learn. We learn by making mistakes. As long as our mistakes don’t get people killed, we’re probably going to be okay. Make mistakes and learn from them. That would be my number one advice on the appellate side.

Broader than that, one thing that I’ve learned in the practice of law is I started my life in a different place than I’m at now, in the sense that I grew up in a family that was extremely conservative. I’ve learned over time that finding dignity in the individual human being is critical. It’s changed the way I practice law and so I would encourage other employers out there to focus less on the bottom line and focus more on the dignity of the individual of the folks they’re working with. They will find that they will have a much more profitable and fun practice. Those aren’t necessarily war stories. Those are lessons learned, but I’m sure I could tell you a war story or two but it’s going to bore you.

We appreciate it and we appreciate your time. Thanks so much for sharing with us. This has all been super interesting stuff.

Thank you so much for having me. I hope that it makes for an entertaining show, and I look forward to seeing you guys continue to work. You guys are amazing in what you’re doing, not just for Appellate Law. For anybody who wants to learn how to interview on a podcast, I recommend that they listen to yours to see how to interview a guest in a comfortable and conversational way.

Thank you.


Important Links

About Chris Attig

CAVC attorney Chris Attig is one of our nation’s leading advocates for veterans.

He is unique in two ways.

First, Mr. Attig is one of the few attorneys for veterans who actually wore the uniform; he has seen, firsthand, the devastation that the VA’s legal and medical malfeasance can wreak on a veteran’s family.

Mr. Attig served in the U.S. Army Field Artillery, receiving many awards including the parachutist badge. He attended U.S. Army Ranger school and because of his tenacity, professionalism, and esprit d’corps was recruited for U.S. Army Special Forces Assessment and Selection. Mr. Attig declined the opportunity, ultimately dedicating himself to serve his brother and sister veterans through the law.

Mr. Attig focuses on applying his skills at appellate advocacy before the U.S. Federal Circuit Court of Appeals, the U.S. Court of Appeals for Veterans Claims, the Board of Veterans Appeals, every VA Regional Office in the country and, as of 2017, the United States Supreme Court.

Mr. Attig has prepared numerous briefs to appellate courts. He has orally argued cases on behalf of veterans before the U.S. Federal Circuit Court of Appeals, the 5th U.S. Circuit Court of Appeals, and the U.S. Court of Appeals for Veterans Claims. He remains the only law student in his law school’s history to have served as a law clerk to the Chief Justice of the Supreme Court of the State of Texas—while still in law school.

Mr. Attig is known for both his meticulous and thorough record review and his dogged pursuit of constitutional due process and equal protection rights for veterans battling the VA.

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Photo of D. Todd Smith D. Todd Smith

D. Todd Smith practices in the Appellate and Written Advocacy Group at Butler Snow LLP, where he represents clients in all phases of civil appeals and original proceedings and works with trial teams from the earliest stages of litigation. In trial courts, Todd…

D. Todd Smith practices in the Appellate and Written Advocacy Group at Butler Snow LLP, where he represents clients in all phases of civil appeals and original proceedings and works with trial teams from the earliest stages of litigation. In trial courts, Todd takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

Todd earned degrees from Texas Christian University (B.S. 1989), Texas Tech University (M.P.A. 1992), and St. Mary’s University School of Law (J.D. 1995). While in law school, he was editor in chief of the St. Mary’s Law Journal and interned with Fifth Circuit Judge Emilio M. Garza (ret.).

Before joining Butler Snow, Todd served as a briefing attorney to Texas Supreme Court Justice Raul A. Gonzalez (ret.) (1995-1997), practiced with Fulbright & Jaworski L.L.P. (now Norton Rose Fulbright US LLP) (1997-2006), and ran his own civil appellate boutique (2006-2021). He is certified as a specialist in Civil Appellate Law by the Texas Board of Legal Specialization and regularly appears on Thomson Reuters’ Texas Super Lawyers list.

Todd frequently writes and speaks on appellate-related topics. In addition to publishing Texas Appellate Strategy, he is the creator, producer, and co-host of the Texas Appellate Law Podcast, a weekly show that demystifies appellate law and pulls back the curtain on the appellate system through conversations with judges, court staff, and practitioners.

Todd sits on the State Bar Board of Directors, is immediate past chair of the Austin Bar Foundation, and is a past-president of the Austin Bar Association. As Austin Bar president (2019-2020), Todd spearheaded creation of the Lawyer Well-Being Committee, which aims to educate, support and connect the Austin legal community to achieve more balanced, mindful, and joyful lives and practices. He also serves on the Judicial Committee on Information Technology, is a trustee of the Texas Supreme Court Historical Society, and is a member of the Robert W. Calvert American Inn of Court.