The Brief Case: DRI Committee News

Life, Health & Disability News

Fourth Circuit Vacates and Remands ERISA Benefits Decision Where District Court Employed “Quasi-Summary-Judgment” Approach Subsequently Disavowed in Tekman

By Scott M. Trager

In Penland v. Metropolitan Life Ins. Co., No. 22-1720, 2024 WL 1528957 (4^th Cir. Apr. 9, 2024), appellant, Tracy Penland (“Mr. Penland”), appealed the district court’s ruling, based on a stipulated record and employing a “quasi-summary-judgment” approach, affirming the determination of Metropolitan Life Insurance Company (“MetLife”) to terminate long-term disability benefits.  Mr. Penland’s claim involved degenerative disc disease under which the plan imposed a maximum lifetime coverage period of 24 months.  In order to maintain coverage beyond the 24-month period, Mr. Penland needed to show continued disability stemming from a “non-limited medical condition.”  After Mr. Penland provided notice of suffering from certain non-limited conditions, and after MetLife reviewed the medical records, MetLife determined that those non-limited conditions did not require work restrictions and concluded Mr. Penland was no longer disabled under the terms of the plan and terminated benefits.  Following Mr. Penland’s unsuccessful internal appeal, he filed an ERISA action in the United States District Court for the District of South Carolina.

The district court employed its “Specialized Case Management Order” for ERISA benefits cases and, pursuant to that order, the parties agreed to a stipulated record consisting of the evidence before the plan at the time benefits were denied and Mr. Penland’s internal appeal was considered.  Since the plan did not give MetLife discretionary authority to make coverage decisions, the district court reviewed the case de novo.  The district court, therefore, conducted a thorough and painstaking analysis of the record, resolving material factual disputes and weighing the credibility of various medical providers, and then, based on those findings, entered judgment affirming MetLife’s termination of Mr. Penland’s benefits.  The district court, however, did not indicate or suggest it was making its factual findings pursuant to a bench trial under Fed. R. Civ. P. 52, nor did it style its opinion to comport with the requirements of that rule.  The court also did not purport to apply the standard for summary judgment under Fed. R. Civ. P. 56.  Mr. Penland appealed the district court’s judgment to the Fourth Circuit.

The circuit court first noted that, at the time the district court issued its decision, there was a lack of clarity within the circuit (and among other circuits) on the proper procedure for ERISA denial-of-benefits cases.  After the district court’s ruling, however, the Fourth Circuit, in Tekman v. Reliance Standard Life Ins. Co., 55 F.4^th 951 (4^th Cir. 2022), rejected the  hybrid “quasi-summary-judgment” procedure in which the district court independently weighs the facts and opinions in the record and determines for itself whether the claimant can show disability under the plan.  Under Tekman, district courts, in cases where a stipulated administrative record gives rise to a genuine dispute about “the cause, severity, or legitimacy of an individual’s impairment,” id. at 960, are to resolve those disputes and render a judgment in a bench trial pursuant to Fed. R. Civ. P. 52.  The ruling of the district court employing the quasi-summary-judgment procedure, however, preceded the Tekman decision disavowing that very procedure.  The Fourth Circuit acknowledged it could not assume, for the sake of efficiency, that the district court undertook a bench trial and review its findings as that would entail review under a deferential “clearly erroneous” standard that neither the parties nor the court would have anticipated while the case was before the district court.  Accordingly, the Fourth Circuit, to ensure full procedural fairness, vacated the judgment of the district court and remanded the case for a Rule 52 bench trial consistent with Tekman.

Scott M. Trager is a Partner at Funk & Bolton PA. His practice covers a broad spectrum of general litigation matters in the state and federal courts of Maryland and the District of Columbia, as well as the Maryland Insurance Administration and Maryland Office of Administrative Hearings. He focuses his practice on the defense of life, health and disability insurance claims (ERISA and non-ERISA), as well as administrative claims before insurance regulators. He also has extensive experience with policy rescissions and interpleaders. He is the Immediate Past Chair of DRI's Life, Health and Disability Committee, and previously served as Committee Vice-Chair (2018-2020) and Program Chair of the 2017 DRI Life, Health, Disability & ERISA Seminar. 

Interested in joining the Life, Health & Disability Committee? Click here for more information.

Insurance Law: Covered Events

Construction Law Subcommittee Leadership Note

By Kimberly N. Ramey

The ILC’s Construction Law subcommittee focuses on coverage issues impacting contractors and their insurers. Our members include in-house and outside counsel as well as claims professionals, all of whom are tuned in to the construction industry. The subcommittee provides its members with opportunities to collaborate, learn and share information as well as opportunities to write for DRI publications and speak at DRI seminars. Our subcommittee is always open to new members with unique insights or perspectives. If you would like to learn more about this expanding area of insurance law, we encourage you to join. Please feel free to contact me at kramey@butler.legal. 

Kimberly N. Ramey is a Partner in Butler’s main office in Tampa, Florida. Her practice primarily focuses on liability insurance coverage disputes, focusing on general liability coverage. She has extensive experience handling and litigating third-party claims involving a variety of coverages, including auto liability, commercial, public liability, personal/premises liability, professional liability, and excess and umbrella liability. Kimberly is skilled at transferring risk and minimizing exposure in multi-party disputes involving complex construction defects and catastrophic accidents. She is frequently retained to defend insureds in premises liability, automobile negligence, construction accidents, construction defects, and personal injury cases.

Reinsurance SLG Leadership Note

By Robert A. Whitney

The ILC’s Reinsurance SLG offers numerous opportunities for members to participate and to learn about developments in reinsurance law. The Reinsurance SLG typically meets in person during the annual Insurance Coverage and Practice Symposium in December in New York City, and at other times during the year by Zoom. At these meetings, we have discussions of relevant reinsurance law topics involving litigation and arbitration matters.  In addition to meetings on reinsurance issues, Reinsurance SLG members have the opportunity to publish in DRI publications, such as The Brief Case. 

For example, in the April 2024 issue of The Brief Case,one SLG member just published an article concerning a retrocessionaire’s ability to bring an malpractice claim entitled “New York State Appellate Division Rules, in Seminal Decision, That Retrocessionaire Can Bring Malpractice Suit Against Underlying Insured’s Counsel Under Equitable Subrogation Theory.”  Also, at an upcoming Insurance Coverage and Practice Symposium, members of the SLG hope to be able to give a presentation on issues concerning implied “follow the fortunes” provisions in reinsurance contracts, and whether they are enforceable. 

If you are interested in joining our subcommittee, please contact me at robert.whitney@mgclaw.com.

Robert A. Whitney, a partner in the law firm McAngus, Goudelock & Courie, LLP, in its Insurance Coverage and Reinsurance Practice Group in Boston, is the Chair of DRI’s Reinsurance SLG of the Insurance Law Committee.  Rob is also a member of the Boston Bar Association’s Insurance and Reinsurance Committee of the Tort and Insurance Section.  Rob is also a current Board member and prior President of the Massachusetts Insurance & Reinsurance Bar Association.  Rob was also previously Deputy Commissioner and General Counsel of the Massachusetts Division of Insurance and is also an ARIAS-US Certified Insurance and Reinsurance Arbitrator.

Classification Endorsement’s Impact on Construction Litigation and Coverage

By Carri Leininger and Jessica Gregory

Coverage attorneys have seen it, a prominent general contractor who applied for a Commercial General Liability (CGL) policy as an interior carpenter, thus paying a premium that represents a small fraction, a very small fraction, of what they would have paid had they accurately represented their scope of work.  Or a painting contractor who submits a claim for a roofing defect.  Carriers find themselves in the difficult position of providing coverage for a risk that they did not bargain for or heading down the tortured and uncertain path of recission.

The ISO Commercial Lines Manual (CLM) section on "Classifications" describes the purpose of the classification system: "to group insureds into classifications so that the rate for each classification reflects the hazards common to those insureds." (Emphasis added.) This is actually another way to describe the prime goal of the underwriting process—to match the hazard or exposure of an insured with the appropriate premium for that insured. The goal of the underwriting process is the accurate classification of an insured to make sure the premium matches the exposure.

However, the classification system only works if the insured and the agent accurately report the scope of work performed by a contractor. With a Classification Endorsement, the insured is incentivized to accurately report their scope of work and in return is not charged a premium for coverage of a risk it does not present.

The introduction of Classification Limitation Endorsements more than fifteen (15) years ago represented a significant shift in the landscape of insurance coverage. A typical Classification Limitation Endorsement will read something like:

This insurance will not provide coverage or supplementary payments for defense or expense costs under any part of the policy arising out of operations not described in the Classification(s) of operations shown in the Policy Declarations or the Policy Coverage Schedule whether or not incidental.

These endorsements are specifically crafted to limit coverage to the specific operations that are Classified in the policy Declarations. While not labeled as such, a classification limitation essentially acts as a policy exclusion, excluding coverage for any operations that are not specifically Classified in the policy Declarations. See Evanston Ins. Co. v. Heeder, 490 F. App’x 215, 217 (11th Cir. 2012) (concluding that no coverage was owed where the classification limitation endorsement limited coverage to residential roofing and the underlying suit involved commercial roofing); Atl. Cas. Ins. Co. v. Johnny’s Quality Exteriors, Inc., 131 F. Supp. 3d 1077, 1086–87 (E.D. Wash. 2015) (explaining that claims regarding a wall collapse did not fall within the classification for roofing where the insured was engaged to construct walls and argued that collapse resulted from an improper roof connection); Colony Nat’l Ins. Co. v. Hing Wah Chinese Rest., 546 F. Supp. 2d 202, 209 (E.D. Pa. 2008) (finding no coverage because the classification limitation for a category of restaurant did not encompass food delivery); Atl. Cas. Ins. Co. v. McCormick Bros. Constr. Co., No. H-07-2849, 2008 WL 2965169, at *2 (S.D. Tex. July 30, 2008) (concluding that the insurer did not owe coverage where the policy bore a classification limitation installing dry wall or wallboard and the plaintiff was hurt working on a skylight).

Historically, CGL policies have been broad in nature, offering coverage for a wide variety of operations performed by the insured. However, the introduction of the Classification Limitation narrows this coverage, and specifically tailors the policy to only provide coverage for operations that have been disclosed and specifically Classified on the policy Declarations. Coverage will be excluded for any damages arising out of operations that are not specifically designated in the Classifications.

The case law interpreting and applying such provisions demonstrates the critical importance of the specific language used in the endorsements and the classifications listed in the policy. For example, the holding in Evanston Ins. Co., supra, demonstrates how a misalignment in the insured’s actual operations and the operations classified on the policy can lead to a complete denial of coverage.

From an underwriting perspective, these Classification Limitations advance the primary goals of insurance underwriting—(1) matching the risk associated with an insured’s business with the appropriate premium and (2) only insuring operations the carrier intended to insure. By specifying the precise operations that will be covered, the carrier can more accurately predict potential liabilities and set premiums that are appropriate for the actual level of risk they are undertaking.

Polices that do not contain Classification Limitations may end up having to provide coverage for claims arising out of risks that the carrier never intended to insure, and for which they did not receive the appropriate premium. For example, if an insured applies for a CGL policy and choses the Classification for “carpentry-interior” (which comes with a minimal premium) but is actually acting as a general contractor on major construction projects, without a Classification Limitation Endorsement the carrier may be stuck having to pay a large construction defect claim for a general contractor whom it never intended to insure.

When analyzing the application of a Classification Limitation Endorsement, insurers should be careful to perform a rigorous analysis. They must consider: (1) the specific language of the endorsement; (2) the description of the classification listed on the policy (whether they are adequately described, and whether there is any ambiguity in the description), and (3) the allegations in the complaint. 

Most coverage attorneys are familiar with Classification Endorsements and their potential limitations on coverage.  However, many construction defect attorneys are unfamiliar with these endorsements (they can quote you chapter and verse on “resulting damage” and some think they understand “rip & tear” but far fewer understand Classification Endorsements).  While a discussion of the Classification Endorsement will be included in a coverage position letter to the insured, overage counsel will have to consider whether and when to notify plaintiff counsel of the endorsement.   In some instances, a well-timed discussion with plaintiff counsel can lead to a settlement that protects the insured as well as the carrier. 

Additionally, before asserting a Classification Limitation as a basis to deny coverage, the carrier should consider whether doing so in the specific case would advance the principal goals of insurance underwriting, which is the reason for having the Classification Limitation Endorsement in the first place. If the operations at issue in a claim do not appear to fall directly within the Classification, but the carrier was made aware of the true nature of the operations during the underwriting process, and the premium at issue would have been the same even if a more appropriate class code had been chosen, the goal of insurance underwriting would not be accomplished by denying coverage. Carriers should be careful not to use the Classification Limitation as a basis to deny coverage for risks that they intended to insure at the premium they were insured. Insurers must weigh the technical aspects of the policy's language against the principles of fairness and good faith in insurance underwriting.

For businesses insured under CGL policies, the implications of Classification Limitation Endorsements are many. Businesses (insureds) should be aware if their policies contain these Endorsements and make sure that the operations that they are performing fall within the Classification(s) listed on their policy. If they are not, they are jeopardizing potential coverage under the policy.

Insurance agents should also be aware of these Classification Limitations and make sure that they are advising their clients accordingly. If not, they are opening themselves up to potential claims of agent negligence.

In summary, the introduction of Classification Limitation Endorsements demonstrates a broader trend in the insurance industry towards customization, precision, and risk alignment. However, it also imposes additional responsibilities on insureds, insurers, and insurance agents, requiring each to take a proactive approach to insurance underwriting, insurance procurement, and insurance management.

Carri Leininger of Williams, Leininger & Cosby is Board Certified in Appellate Practice and is the head of WLC’s appellate and insurance coverage practice groups. She routinely handles appeals, insurance coverage disputes, first party medical claims, and complex presuit matters.

Jessica L. Gregory of of Williams, Leininger & Cosby graduated from the University of Florida in 2008 and is a 2011 Graduate of the Florida State University College of Law. Jessica began her legal career as an Assistant Public Defender for the 9th Judicial Circuit, in Orange County, Florida. 

Interested in joining the Insurance Law Committee? Click here for more information.

Young Lawyers: Raising the Bar

Chair's Corner

By Tom Wyatt
Edited by Pamela Haug of Lexitas

I hope everyone took advantage of this month’s amazing solar eclipse and the great weather that spring brings.  With new seasons on the horizon, I encourage you to consider attending, or sending a young lawyer at your firm to attend, the 2024 DRI Young Lawyers Seminar in Nashville, Tennessee, from June 12-14, 2024.  The Seminar will feature speakers on artificial intelligence, business development, diversity and inclusion, pre-trial and trial tactics, and client management.  Plenty of networking and social events will occur, too, at dine-arounds and receptions.  One of my favorite events at the Young Lawyers seminar each year is the “Fast Pitch Program,” where young lawyers meet with in-house counsel for fifteen minutes to pitch their firms and practices and receive valuable feedback.  On more than one occasion, a young lawyer has received business from this program or, at minimum, an excellent contact for future client development.  It is sure to be a great program that any young lawyer would not want to miss.   Please visit the seminar page for more information and to register to attend.

If you or anyone you know want to become involved in the Young Lawyers Committee, please let me know, or feel free to reach out to our Chair, Emily Ruzic, at eruzic@bradley.com. 

Tom Wyatt’s practice provides comprehensive and cost-effective service to a diverse client portfolio—from individuals to Fortune 500 companies—in litigation matters involving commercial and residential property development, land-use disputes, municipal interface and interference, complex commercial litigation, and products-liability defense, with a focus on drug and medical device cases. Tom currently serves as the Vice Chair for DRI Young Lawyers, and as President-Elect for the Arkansas Association of Defense Counsel, Arkansas’s premier association of civil defense attorneys. Tom was recognized in the 2024 Edition of Best Lawyers: Ones to Watch in the area of Commercial Litigation for the fourth year in a row.

Social Media and Marketing for Attorneys

By Anastasia Shubert-Baranowski
Edited by Pamela Haug of Lexitas

If it was not obvious already, social media is not a passing trend and is very much here to stay. Over the last decade, social media has evolved from a fun way to connect with friends and family to a powerful, if not necessary, tool for marketing yourself and your business. As a member of DRI’s Young Lawyers Committee, and more specifically, a Co-Chair of the Young Lawyers Social Media Subcommittee, it is my goal for our committee to embrace the current social media culture, encourage our other young lawyers to do the same, and use these platforms as an opportunity to show future or aspiring lawyers that the legal profession is not all doom and gloom like we so often hear.

When considering law school as an undergraduate student myself, I heard mostly (if not only) horror stories and warnings about where law school would take me, and very rarely received any positive feedback or excitement about the journey I was considering. Despite all this, I chose to pursue a career in law regardless of the negative feedback. For my first few years as a new attorney, I thought the horror stories might just be true, and I began to worry that I might have to simply accept that there is no such thing as being “happy” in this profession. Although it was not an easy road and there were many challenges along the way, I am relieved to have discovered you can find happiness in this career.

This profession has brought me some of my deepest friendships and taken me on trips across the country to places like Charlotte, North Carolina, Austin, Texas, and Miami, Florida just to name a few – naturally, all of which are well-documented on my social media accounts. Not many people can say their workday consisted of paddleboarding next to a manatee, so I spent a lot of time responding to friends and family who reached out in response to my posts: “Aren’t you a lawyer?” “Are you on vacation?” – I was more than happy to talk about the networking and educational opportunities that have been available to me through DRI, and how supportive my firm has been in attending DRI seminars and events. Social media, while originally created to connect with family and friends, can now also be used to find a job that is the perfect fit for you and the life you envision for yourself. Take note of what your lawyer-friends are doing on social media – if they are traveling, networking, or otherwise appear to have unique opportunities that you are interested in, reach out and ask questions.

The feedback I (and many others) receive in response to these types of posts goes to show how useful social media can be as a marketing tool not just for clients, but for new hires as well. The generations of recent law school graduates only know a life with social media. Looking to move to a new house? Check out Zillow. Want to try the new restaurant down the street? Look at their reviews on Yelp. Thinking about applying to that job? Look at Glassdoor first. The new generation of attorneys often rely on social media when making decisions, big and small, which is a factor often overlooked by the older generations wondering why they are not receiving the number of associate applicants they used to. If your firm or your firm’s attorneys have social media pages that are rife with posts about travel, time with family and enjoying events with colleagues, you have a much better chance of attracting a larger pool of applicants.

If you are happy at your firm, great! Post about the good times with your colleagues, and the learning experiences you are being offered. If you are not happy, look for the attorneys who are sharing the type of work-life you are looking for.

Of course, social media is not always what it seems. Just because a friend is traveling or sharing positive thoughts and experiences on social media, does not necessarily mean they are happy with their job or their career choice. Instagram, TikTok and X are also useful forums as a source of support for young attorneys. They offer opportunities to connect with each other over similar day-to-day struggles that only other lawyers can relate to. It is easy to feel alone when faced with the challenges the legal workday brings. Only our lawyer-friends and colleagues know what it feels like to be yelled at by a judge for not knowing it was their lunch hour when you called chambers with a question. Connecting over shared experiences, good and bad, offers a sense of community that is not necessarily accessible or available elsewhere.

In a profession that is constantly evolving, Instagram, X and TikTok are also great forums for these types of conversation starters and familiarity with new issues is exactly the type of content that can grab a potential new client’s attention. A quick post on X, limited to no more than 280 characters, can be used to offer commentary on a recent Supreme Court decision and generate thousands of responses and shares, bringing attention to you as an attorney or your firm as a whole. Some lawyers are concerned that a social media presence for attorneys and firms risks being interpreted as “legal advice” by the reader, and possibly blurring the line into creating an attorney-client relationship over the internet. Not surprisingly, the ABA has addressed this concern a few times over the last ten years, and the advice they offer to lawyers who are active on social media remains rather consistent – just include a basic disclaimer. Anything along the lines of: “This is not intended to be used as legal advice and this content is not intended to form an attorney-client relationship,” seemingly satisfies expectations to avoid these concerns on social media.

Young millennials and Gen Z attorneys often overlook LinkedIn the same way that older millennials and beyond overlook Instagram, “X” (fka, Twitter) and TikTok. LinkedIn is a valuable tool for marketing yourself by way of sharing your personal accomplishments, experiences, awards, and publications.

Of course, client confidentiality is an absolute priority, and must be protected at all times. However, there are plenty of ways to highlight your accomplishments as an attorney without putting any client or specific case in the spotlight. For example, you can pick your favorite headshot, and include a caption as simple as, “Pleased to announce that the Court granted our Motion for Summary Judgment today, dismissing the claims against our client with prejudice, after a long, hard fought battle on issues involving Sovereign Immunity.”

Even if you have yet to formally publish an article, LinkedIn is the perfect forum to share your thoughts on important or developing topics in your field/practice area, similar to the type of engagement you can receive via X. The comment and reshare features on LinkedIn give your network the ability to engage in conversation that you sparked, and before you know it, your critical thinking skills, and ability to analyze and debate an issue is on display for employers and clients to see.

In addition to being an opportunity to display your legal expertise, social media also presents an opportunity to make attorneys more relatable to potential clients. Lawyers most often only speak with clients on the client’s worst days – maybe they were severely injured, their business is being sued, or there is some other emergent problem that needs fixing. While it is undoubtedly important to be seen as a professional in these moments that your client needs your help, it can be hard to relate to the stone-cold, suited-up stereotype of an attorney. Clients and potential clients may not otherwise have the opportunity to see who we are as people, and how deeply we may relate to them and their experiences. Tools like Instagram and TikTok, when used appropriately, can give our clients that brief glimpse into who we are as human beings – people with families, pets, hobbies, and accomplishments we are proud of – not just someone in a suit.

If you do decide to take advantage of social media for professional use, there are some limits and boundaries to consider. I would certainly not recommend posting “throwback” pictures to your college partying days on a platform where clients and employers can see your best keg stand. However, a short clip of your afternoon walk with your dog is a wholesome experience many clients could relate to. For some, it may be helpful to have two accounts on a platform like Instagram – one private account where you connect with friends and family, and a second public account to capture your professional life with a personal touch. 

Anastasia Shubert-Baranowski is an Associate Attorney with Margolis Edelstein’s Philadelphia office, where she specializes in employment law and represents both public and private employers in a range of legal matters. She has experience litigating discrimination, harassment, retaliation, hostile work environment, wage & hour disputes, and vicarious liability claims. She also helps employers with compliance issues, such as drafting policies, handbooks, and employment agreements to ensure adherence to state and federal laws. She has been a member of DRI’s Young Lawyer’s Committee since 2022, where she currently serves as a Co-Chair of the Social Media Subcommittee.

Interested in joining the Young Lawyers Committee? Click here for more information.

Young Lawyers: Raising the Bar Cont.

Pro Bono Litigation: Why Every Young Lawyer Should Volunteer

By Chadwick Lamar
Edited by Pamela Haug of Lexitas

As a young lawyer, you might be struggling to believe that you can make a difference and to figure out how to do so.  You might also be wondering how to gain the courtroom experience seemingly necessary to build a legal practice.  If either of these is true, consider how pro bono litigation has impacted our legal system and could impact your career. Even if you read no further, take this advice: volunteer for pro bono cases.

In Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court held that the Sixth Amendment, as incorporated against the states by the Fourteenth Amendment, guarantees an indigent defendant the right to state-appointed counsel in any felony criminal prosecution. Id. at 343–45 (overruling Betts v. Brady, 316 U.S. 455 (1942)). Gideon “recognize[d] that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him”; that is, at least for felony cases. Id. at 344. And the Supreme Court later described Gideon as a necessary step in “protect[ing] the fundamental right to a fair trial.” Strickland v. Washington, 466 U.S. 668, 684 (1984). In fact, Gideon is the only procedural right ever characterized as “watershed,” so to apply retroactively to cases on collateral review. Beard v. Banks, 542 U.S. 406, 417 (2004). 

Some jurists have challenged the historical justifications for Gideon’s central holding.  See, e.g., Turner v. Rogers, 564 U.S. 431, 451 (2011) (Thomas, J., dissenting) (“[A]s originally understood, the Sixth Amendment guaranteed only the ‘right to employ counsel, or to use volunteered services of counsel’; it did not require the court to appoint counsel in any circumstance.” (quoting Padilla v. Kentucky, 559 U.S. 356, 389 (2010) (Scalia, J., dissenting)). But whatever your view of Gideon’s merits, nobody denies the sea-change that Gideon affected on state criminal-justice systems: Gideon “is still recognized as pivotal in making legal representation a reality for defendants accused of serious crimes.” See 60 Years Later, Gideon’s Legacy Lives On, U.S. Courts (Mar. 16, 2023) (link). As one of Gideon’s appointed lawyers put it, the decision “reflects the present Supreme Court’s deep and abiding concern with the problems of individual rights and civil liberties,” and “it stands as a notice that in the free world no man shall be condemned to penal servitude without a lawyer to defend him.” Abe Krash, Right to a Lawyer: The Implications of Gideon v. Wainwright, 39 Notre Dame L. Rev. 150, 154 (1964). 

Today, Gideon is a keynote case in every constitutional law textbook, but aspiring litigators often overlook that Clarence Earl Gideon’s case wound up at the Supreme Court because of his handwritten, pro se petition for a writ of certiorari. Id. at 150–51. With the assistance of his prison’s library and paper, Gideon argued that “all citizens tried for a felony crime should have aid of counsel.” Petition for Writ of Certiorari at 3, Gideon v. Wainwright, 372 U.S. 335 (1962) (No. 890). The Court granted certiorari, and then it appointed future Supreme Court Justice Abe Fortas to represent him. See Krash, supra, at 150–51. The rest is history.

Okay, so we’re not all Abe Fortas.  And pro bono work isn’t a golden ticket to a Supreme Court nomination.  But the story of Gideon’s path underscores the need for lawyers—regardless of their pedigree or experience level—to volunteer for pro bono work inside the courtroom. It also highlights an open door for young lawyers to gain valuable experience that might otherwise be reserved for those more senior. This short article recounts some of the reasons why young litigation lawyers should jump out of their chairs to volunteer: doing so provides a weighty benefit to society at large and the young lawyer looking to develop skills and experience. This article also provides a few lessons learned and wisdom gained from my own exposure to the world of pro bono litigation.

The Need for Pro Bono Volunteers and Doors It Could Open

Begin with this unsurprising premise: Regardless of your pedigree or experience, your help is needed. Litigants without a lawyer “make up a sizable and normatively important chunk of civil litigation in the federal courts,” including “more than a quarter of nonprisoner civil cases,” Roger Michalski, et al., Mapping the Civil Justice Gap in Federal Court, 57 Wake Forest L. Rev. 463, 464 (2022), and around 90 percent of all prisoner cases, Mark D. Gough, et al., (Un)changing Rates of Pro Se Litigation in Federal Court, 45 L. & Soc. Inquiry 567, 576 (2020). The assistance of an attorney is also statistically likely to be fruitful—in other words, representation by an attorney positively impacts success rates for litigants who otherwise would proceed without an attorney. Research “suggests that unrepresented litigants are less likely to win than represented litigants.” Michalski, supra, at 472. Other research recognizes the pitfalls of “unequal bargaining power of represented litigants over their unrepresented adversaries.” Id. And, of course, the assistance of counsel diminishes the possibility “that judges and lawyers associate” the otherwise unrepresented “litigant[] with weaker claims.” Id. Your decision to volunteer might well be the difference between winning and losing; between justice served and justice denied.

Even early in your career, the stakes of your volunteering can be as high as the difference between life and death. A young lawyer in Birmingham, Alabama, argued the appeal of Clemente Aguirre—an innocent man who had spent 14 years in prison, and 10 of them on death row—before the Florida Supreme Court, which “unanimously reversed [his client’s] convictions and ordered a new trial,” and which ultimately resulted in Aguirre’s exoneration. Case Study, Bradley Attorney Lindsey Boney Wins New Trial for Florida Death Row Inmate, Bradley (last visited April 16, 2024) (link). That lawyer was a sixth-year associate when he argued the appeal, his second high-stakes appellate argument in his first decade of practice. He didn’t let being an associate get in his way. Neither should you. 

Slightly changing course, consider the benefits that might accompany your involvement in pro bono litigation. Suddenly, the associate who hardly ever sees the inside of a courtroom is advising the client first-hand, leading the strategic decision-making process, signing pleadings, taking depositions, arguing motions, conducting mediation, and leading the charge at trial. The same is true for pro bono appellate work in both direct- and collateral-review proceedings. You might be busy with other matters—everyone is—but pro bono work provides a tangible path towards gaining the experience vital to professional growth. The experience you gain doing pro bono work will make you an asset to your firm in billable matters.  Your client will be better for it; you will be better for it; and your firm will be better for it. So go for it. 

A Few Lessons Learned Along the Way

Every case presents its own idiosyncrasies and challenges, and pro bono work is no exception. Here are a few reminders—based on my own experiences and discussions with more seasoned advocates—that can help set you on a path towards successfully representing the underrepresented.  

1. Research available opportunities. Many (if not most) federal district courts and courts of appeals encourage voluntary pro bono representation, and those courts have programs that place unrepresented litigants with lawyers like you.  See, e.g., Plan for Pro Bono Counsel for Qualified Unrepresented Parties in Civil Cases, U.S. DISTRICT COURT FOR THE N.D. ALA. (Nov. 18, 2016) (link); Pro Bono Program, U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT (last visited April 4, 2024) (link). Your firm also likely has a pro bono program that facilitates work on these kinds of matters—often with hourly credit indistinguishable from billable matters. If you haven’t done so already, I encourage you to speak with your firm and submit your application to participate in your home courts’ pro bono programs. 

2. Take these cases seriously. Once you get involved, remember that there should be no difference in your day-to-day conduct between pro bono cases and billable cases. Your ethical duties of competence and diligence apply no less to an incarcerated individual’s case than to a Fortune 500 company. And your assistance will matter greatly to your pro bono client—after all, these cases often involve serious violations of their person and constitutional rights. Take them seriously. 

3. Manage expectations and communicate proactively. Be ready for a barrage of out-of-the-blue calls or letters asking for updates and advice. You should always strive to effectively manage your client’s expectations, anxieties, and emotions. And always thoroughly explain to your client your recommendations (and the bases of them) on strategic decisions, obtain your client’s approval, and make a paper record of these decision-making processes. On the flip side, remember not to set expectations that are too grand: these cases are often difficult to win, so don’t allude to a result you cannot guarantee. And remember that your firm likely will have a limited engagement with your client—this means that you’re his or her lawyer for this case, but not for others. Your firm will appreciate your adherence to the scope of engagement. 

There unquestionably is a societal need for our help. Perhaps fortunately, your volunteering can open the door to experience that will make you a better, more marketable lawyer.  Do not pass up this opportunity.  It could be the difference-maker in your client’s case; in your career; and even in the constitutional jurisprudence of the Supreme Court of the United States.

Chadwick Lamar is a third-year appellate and trial litigation associate with Bradley Arant Boult Cummings LLP in Birmingham, Alabama.  Prior to joining Bradley, Chadwick served as a law clerk for the Honorable Corey L. Maze of the United States District Court for the Northern District of Alabama and for the Honorable Leslie H. Southwick of the United States Court of Appeals for the Fifth Circuit. He is also a co-chair of the Young Lawyer Publications Subcommittee for the Briefcase.

Member Spotlight: Nicholas E. Richardson 

Edited by Pamela Haug of Lexitas

Nicholas E. Richardson is a Shareholder in the Tampa, Florida office of Segal McCambridge. Segal McCambridge is a civil defense firm handling a wide variety of matters from products liability, medical malpractice, and general negligence claims to insurance coverage and bad faith. Nick primarily handles insurance coverage and bad faith disputes on behalf of national carriers, appeals and high-exposure litigation.

Nick graduated from the John Marshall Law School, now University of Illinois-Chicago School of Law. Since graduation, Nick has successfully tried both non-jury and jury trials in several states including Florida and Illinois. Further, Nick has been successful in preparing appellate briefs and arguments before the Seventh Circuit Court of Appeals, the Illinois Appellate Court, and Michigan Appellate Courts.

Nick is currently admitted to practice in Illinois and Florida along with several federal jurisdictions throughout the country. Along with DRI, Nick is involved with Judge John M. Scheb American Inn of Court in Sarasota, Florida, and the Florida Defense Lawyers Association. Since joining the Young Lawyers Steering Committee, Nick has assisted in putting together the DRI Cares event for the Young Lawyers and Bad Faith Seminars in Charlotte, North Carolina and with planning the Young Lawyers Fly-In meeting in Miami, Florida. 

• How and why did you first get involved with DRI?

I first joined DRI as member in 2021 when my prior firm offered to cover the registration. However, I was encouraged to become more involved by my current office’s managing shareholder, as she has been involved for many years. I saw this as an opportunity to not only meet many people and start the business development side of my practice, but also have a place to exchange ideas and learn from other talented lawyers and industry professionals. Since getting involved, I have met so many great people but also have had to opportunity to help local communities and grow the practice of law through the development of younger lawyers.

• What is your favorite part of being a lawyer?

I love the complex and nuanced issues that are prevalent in my practice areas. So much of my practice depends on the wording of insurance policies that it requires a true analysis of each and every applicable word. It is nerdy but fun to write and talk about when your brain really gets going. On the litigation side of things, I love the deposition and witness preparation portion, as this is where cases are won and lost. When your clients are well prepared, they are confident and present well which leads to favorable outcomes.

• What is the best advice you have been given relating to the practice of law?

My biggest piece of advice especially for younger lawyers is to never be afraid to ask questions and to find a mentor or mentors whether in your firm our elsewhere to be able to discuss ideas and issues. Our industry is always changing and there will always be different ways of seeing things so having people to share ideas with will always be important. I have been fortunate enough to have several mentors that I know I can always call, which makes the practice of law much less daunting. 

• When you are not practicing law, what do you enjoy doing?

When I am not behind my desk working on files, I enjoy spending time with my wife and two-year-old son and playing golf.

• What was your favorite non-lawyer job?

In high school, I worked as an umpire for a little league baseball and softball organization. I handled everything from pitching machine levels up to the high school level, including Florida State Babe Ruth Tournaments. This gave me initial skills with dealing with others who have a different way of seeing things, which I feel translates well to the practice of law. 

Nicholas E. Richardson is a Shareholder in the Tampa, Florida office of Segal McCambridge. Segal McCambridge is a civil defense firm handling a wide variety of matters from products liability, medical malpractice, and general negligence claims to insurance coverage and bad faith. Nick primarily handles insurance coverage and bad faith disputes on behalf of national carriers, appeals and high-exposure litigation. 

Interested in joining the Young Lawyers Committee? Click here for more information.