Five Steps to Winning a Remand at the United States Court of Appeals for Veterans Claims
The Court of Appeals for Veterans Claims (CAVC) only grants a certain number of appeals. The good news is that most CAVC decisions are remanded. The CAVC returns the case to a lower court with instructions as to how that lower court should proceed.
Most VA reviews are all about the evidence. No one can assemble a 100-piece jigsaw puzzle if there are only 50 pieces. But at the CAVC, the evidence is not really relevant. Instead, presentation is about the only thing that counts. In our experience, here are the steps to a successful CAVC appeal.
Following these steps does not guarantee success, but failing to follow this process does usually guarantees failure.
Have a Solid Case
Without a compelling case, an appeal is probably a losing proposition. So, the victim’s case must be solid from both an evidentiary and legal standpoint.
Often, this step takes care of itself. The case would not have advanced this far unless there was a good claim.
Evaluate the Case
Trial attorneys often use mock jurors. A few non-lawyers in the area gather during lunch or after work, listen to the attorney’s opening statement, and provide their feedback. This process often reveals flaws in the evidence or argument which a lawyer can correct.
Roughly the same thing is true at the appellate level. But the process is a bit more involved. The panelists must be experienced attorneys because CAVC judges are experienced lawyers. Additionally, they must be familiar with the case. They need to look at the case documents, like the pleadings and record of testimony, in advance. Then, they are in a good position to mimic CAVC judges and help a lawyer fine-tune the presentation.
On a related note, outside evaluation is usually a good idea, as well. It never hurts to have a pair of fresh eyes go over the appeal.
Examine the Record
As mentioned, CAVC judges do not entertain new evidence. They go by what is in the record. So, that record must be complete and, to the greatest extent possible, favorable toward the veteran, or their family members.
Critically, the record must have no gaps. If it is not in the appellate record, it did not happen. Commonly, a veteran, or their family member, will submit multiple medical examination results, and the wrong one is in the record.
Efficiently Prepare the Brief
Most appellate courts, including the CAVC, have specific rules regarding appellate briefs. These requirements cover everything from the page length to typeface font. If a lawyer submits a brief in an incorrect format, it is usually possible to resubmit it, so the mistake is not fatal. But it is time-consuming, and there is no guarantee that the court will allow an amendment.
Know How to Use Oral Argument
In many cases, oral argument is overrated. The judges may have already made up their minds. So, in some cases, it may be best to waive oral argument.
If you do not do so, a first impression is critical. Here, experience comes into play. For years at the Supreme Court, the lawyer’s lectern had a manual crank that raised and lowered it. Right off the bat the Justices knew if a lawyer was experienced if s/he adjusted the lectern, even if the adjustment was not necessary.
The CAVC has quirks just like that, and all of these rules are unwritten.
Count on Experienced Attorneys
A successful CAVC appeal always has a deliberate process behind it. For a free consultation with an experienced veterans disability lawyer, contact Cameron Firm, PC at 800-861-7262 or fill out the contact box to your right. We are here to successfully represent veterans nationwide.
This article is for educational and marketing purposes only. It does not create an attorney-client relationship.