Attorney Fees

[broncovet]

I think there is a lot of misinformation out there about attorney fees, and it sometimes causes Vets to make bad choices.

The most important thing for you to know is that you may have little or no attorney fees because:  

1.  He does not win for you, that is, gets you 0 retro.

2. Even if you win, His fee may be paid by the EAJA if the judges decide that VA was "substantially unjustified" in its position against you.  This "bar" is pretty low.  If the judge agrees you win, then you almost always get EAJA fees, and those may/may not be enough to cover your attorney fees.   You may have to pay fees to the extent that EAJA fees do not cover them all.  

3.  You may get a Pro Bono attorney, where there is no fee to you.  MANY attorney's represent Vets at the CAVC level ONLY for EAJA fees, this means it cost you zero.  

 

In every case, I would recommend a NOVA attorney.  You can find a list of Nova Attorney's here:

You need to understand there are more Veterans needing representation than there are lawyers who are trained in Veterans law to help them.  

https://vetadvocates.org/welcome/find-an-attorney/

If you have hired an attorney to represent you at CAVC:

1.  The CAVC will need to approve payment to your attorney.  Any EAJA fees received by the attorney will be deducted from his fee.  The attorney provides the number of hours he worked on your case, and the CAVC will decide if those attorney fees are reasonable, and reflect the prevailing hourly rate for attornies in the area.  

2.  It may be a bit different if you win at the BVA (represented by an attorney), so if someone has paid attorney fees at the BVA level, please chime in.  

MOstly, the CAVC, generally,  allows attorney fees up to 20% of the retro (minus any EAJA fees received) as "reasonable".   Its much harder for the attorney to get 33%.  To get 33 percent the attorney would have to 

1.  Show the court a fee agreement where you agreed to pay that much.  

2.  Demonstrate the fees are not excessive, and that he has put in work sufficient to justify it at prevailing hourly rates for that area.  

3.  Show the court that he did not "double dip" with EAJA fees, that is, any EAJA fees would be deducted from the agreed upon fee arangement.   

[TexasMarine]

B&M are quite selective, dealing primarily with injuries related to PTSD, MST, and other injuries of the mental health type, but you can't beat them, in those areas.  I've heard they do take "other" cases, on a very limited case-by-case basis.

[broncovet]

Many law firms are selective.  Most are not "non profit" organizations and need to turn a profit to keep the doors open and pay the help.   I have been turned down by several.  It takes persistence.  While, yes, my feelings were hurt when lawyers turned down my case, I needed to realize it was not personal...they have expertise where they have expertise, and my issues were not one of them.  People tend to "like" things they are good at and had success with.  If a law firm had good results with a few MST, cases, for example, they may well like to specialize in them.  Our whole world is highly specialized.  You dont go to a "doc" you go to 

a "surgeon specializing in surgery of the hand" if you want hand surgery.  A brain surgeon may not want to go there.  

It reminds me when those satellite dish companies advertise for service for 19.99 per month.  Now, sir, would you like a receiver so you can actually receive the signal so you dont have to climb on the roof to watch your favorite shows?  That will be another 15.00 per month.  Of course, that is for a black and white analog TV which is not broadcast anymore.  HD receivers are 25.00 per month rental, and that is per TV, and you said you have 3 tV's?   Now, with taxes, fees, one time charges, recurring monthly charges, programmed in price increases, sales commissions, and fees for charging fees fees, your total comes to $159 per month and we plan on raising that as soon as we get the chance.  Of course you can not cancel as you are locked into a 2 year contract which automatically renews for 10 years.  

You would be better off just paying the attorney 30 percent then to have all the fees added.  

[FormerMember]

Texas Marine, you need to read more articles on B&M. They exclusively represent all appeals of the Vietnam Veterans of America. The law is dispositive on the % charged. There is none. A Vet attorney, could he/she justify it, can charge 50% if they so choose. Most Vet Attorneys charge 20% because they enjoy repping Vets. Since 2007, it has become quite fashionable to do so. 33 1/3% gets you no more than 20% at the BVA or CAVC in quality. The motivation and intelligence of the representative is what you pay for- not his proximity to the Court. Ken Carpenter is unarguably the best and could quite possibly get 40% but he settles for 20. Considering he resides and works out of Kansas, that geographical dog you mention won't hunt. As for geographical proximity, in the electronic environment we now inhabit, there is no snail mail to the CAVC. It's called e-filing. It takes just seconds to send it in to 625 Wagon Burner Lane NW from anywhere in the country. In addition, not all jurisprudence occurs at 810 Vermont Ave or 625 Indiana Ave. NW. A great majority of it occurs at your local Regional Office. I have attorney friends in San Diego "fix" problems in Sioux Falls SD and other Regional Offices every day without having to journey there to do so. Likewise, there is no "trial" with attorneys facing one another in Court at the CAVC. On rare occasions, an oral hearing will be held to allow a Vet attorney to address the Court on a legal matter of first impression. This happens about 10 times a year-hardly a reason to lease expensive digs in Georgetown for a law office to be "closer to the action".

A good attorney is definitely one who responds to your queries and keeps you in the loop. You should never have to pay extra for that service. Perhaps the best I have ever seen in this business are Vet attys. who are one-man bands such as Bob Walsh, Katrina Eagle and Keith Snyder. Too much support staff can lead to snafus of immense proportions. Any atty. who has his client prepare the claim has not done his job. You  are called upon to provide a timeline/diary of events when possible. You might be called upon to explain discrepancies in the c-file or missing documents you alone may possess. An attorney is only as good as you arm him/her with the info needed to win. Over-supervising them or questioning their capabilities/ technique makes them feel inadequate and suspect in your eyes. That's the quickest way to lose representation. Always remember who did the 7 years of college and law school to get here. That's a tremendous investment of time and money. By comparison, try finding a regular civie attorney who will rep you for personal injury for less than 40% nowadays and you can begin to appreciate that 20% number.

Consider also that there are a finite number of attorneys available to the numerous Veterans who seek their services and you can readily understand why they appear to "shop" your claim for viability. I have Vets who approach me with a "What do you think of this? Can I win it?" Why am I the bad guy if I say it's a short trip on the Shortline Railroad to a loss or a financial waste of time/resources? Or perhaps, why would I be interested in fighting for a retro of one year on a Tinnitus claim for 10%? 20% of  $1590.00 is $318 dollars. It would not justify coming to work and turning on the lights.  Veterans need to have a realistic appreciation for what an attorney can and will do for them. BroncoVet speaks volumes about how and when an attorney can best be employed and for what amount of remuneration. 

As for EAJA fees. the current lodestar is about $187 an hour and you can also expect VA to insist on a 25% reduction in the EAJA award without a good legal argument. That drags the number even lower. EAJA is a tip on 20%. I personally think the attorney should get it in addition to the 20%. The Attorney process for VA claims is a closed pool. It's easy law as it is designed to give the Vet a leg up legally on many aspects of law unlike civilian practice. For example, there is no comparable process to CUE in civilian practice. 

Congress' decision to allow VA attorneys into the process in June 2007 was met with howls of indignation by guess who? DAV, AmVets, VFW et al. Now they have all partnered up with attorneys for CAVC/Fed. Circuit representation. DAV actively seeks out their Vets for repping by Chisholm,Chisholm and Kilpatrick. Funny how things change-well, except for crappy representation by VSOs.

Lastly, I consider horse-trading to be one of the quickest ways to a TDIU or a 100% schedular with P&T. Agreeing to give up some claims that are inconsequential to the big picture in return for the big banana is a valuable tool to bargaining. Being obstinate and demanding everything puts off DROs and raters alike. I guess I don't need to say how your attorney takes that when he's trying to do the best he can by you. If your law dog(s) are good, trust them to do it right. The internet is a valuable tool to ascertaining who is good at this and who isn't. Blindly accepting someone based on location or percentage charged is not a valid metric in this day and age. 

With that said-best of luck to whoever you choose.

Edited March 24, 2016 by asknod

[TexasMarine]

AskNod, you make very good points.

The homepage of the B&M website would lead anyone to believe they "specialize" in mental health issues.  You are very right in that they will represent other issues.

I've read that the VA loses paperwork mailed to them. Ebennie-submitted documents are no different.  In other words, the VA can still say they simply didn't receive them.  I like the fact the important paperwork can be hand-delivered to the court, with receipt.  Less suspicious.  Less worrisome.

I know about the horse-trading.  Had to do a little myself.

These statements are only meant to show minor disagreement, with all due respect.

The bulk of your post is well-received, and very informative.

TexasMarine

[TexasMarine]

From the B&M website:

 

Bergmann & Moore welcomes all types of cases, and we focus on difficult cases for post-traumatic stress disorder (PTSD), military sexual trauma (MST) and individual unemployability (IU).

Case Specialities

We welcome Veterans appealing disability claims for posttraumatic stress disorder (PTSD) pending before CAVC. Veterans with PTSD and military sexual trauma (MST) are treated equally and with the dignity and respect earned from wearing our nation’s military uniform.

[RUREADY]

I remember I posted I pay 30% to my attorney everyone said I was crazy

I will never pay a VA attorney 33 & a third. Nor will I offer any attorney

in civil court for 40% of my due payment I would find another attorney.

they accept claims of errors in decisions. Nothing more. If a VA attorney

says 33&third to take your case you agree that's on you. It is better and cheaper lawyers

out there. Just they work cases that have a better chance at winning then losing.jmho