‘Working our hardest to represent a client is itself a huge victory’

By Anthony Pericolo ’23

A few weeks after starting the Veterans Law and Disability Benefits Clinic, my instructor, Dan Nagin, approached me about an upcoming opportunity to participate in a hearing before the Massachusetts Department of Veterans Services (DVS). I expressed interest in receiving stand up experience during the semester since I will become a trial attorney, so Dan diligently and quickly found an opportunity. Dan briefed me about the hearing details on a Wednesday, and the hearing was the following Tuesday. The next unusually busy days in the clinic were the most formative and rewarding experiences at Harvard Law School.

I was to represent a Vietnam War veteran, Richard.* He had appealed an improper termination of his Chapter 115 veteran’s benefits.  Chapter 115 benefits is a Massachusetts-wide means-tested veterans program whose origins date back to the Revolutionary War. A local agency official evaluates a veteran’s ability for Chapter 115 benefits and provides benefits to those who are eligible. Chapter 115 benefits serve as a kind of safety net of last resort. Chapter 115 veterans benefits are often the only source of financial stability preventing homelessness. Richard was no exception. Richard had suffered a stroke, was battling cancer, and was unable to work. Shortly after the local agency terminated his Chapter 115 benefits, Richard lacked a stable place to live.

In addition to the practical importance of reinstating his benefits, Richard sought justice. Before seeking help from LSC, Richard tried his absolute hardest to reinstate his benefits, but his persistence proved unsuccessful. He followed the local agency’s directions to complete paperwork and provide documentation. Each time, the local agency official said his paperwork was inadequate and gave another, more complicated document request to Richard. The back-and-forth lasted for an extended period of time. Richard wanted vindication from a rigged benefits application process that threw everything at the wall to see which denial stuck. That was the theme Richard wanted us to communicate in his appeal.

My task was to help Richard tell his story at the appeal hearing. Lisa Musto, an advocate at LSC who worked with Richard before I joined the clinic, handled the opening statement and direct examination of Richard. I was to do direct examination of a supporting witness (a friend who helped prepare Richard’s Chapter 115 paperwork according to the local agency’s directions), a cross-examination of the local agency official, and a closing argument. To prepare, I first read through Richard’s file to learn the facts. Next, I read all of Chapter 115 and the corresponding regulations. Although the local agency’s reasons for terminating Richard from Chapter 115 benefits seemed spurious, I needed to be extra sure that an alternate ground did not exist. It didn’t. Lastly, I contacted Richard’s witness to introduce myself as the student attorney on Richard’s case and learned about her experience helping Richard with his Chapter 115 eligibility paperwork.

Afterwards, I drafted my materials. I felt confident with direct examination. My role as an attorney there was straightforward: jog Richard’s witness’ memory at the hearing through non-leading, open-ended “who, what, when, where, why, and how” questions. The hardest part was getting command of a large factual record, which would come with practice and review. Since the closing depended much upon how the hearing would play out, I could only prepare a few “must have” points in advance. Cross examination, rather, was tricky. Some of the difficulty was that cross examination was a new legal skill that I could only learn in clinics. The rest of the difficulty was my own mental pressure. My lack of confidence in this new skill translated to questions that were not very leading. On top of that, I felt pressure that cross examination was the only opportunity to rebut the opposing case head on.

Once my initial drafts were complete, it was time to practice with the team. We all knew that this was going to be a long hearing, and I needed some extra hand holding since it was my first one. I was amazed by the amount of guidance and patience Dan had throughout our preparation. Dan held several five-hour long Zoom moots with Lisa and me, some that extended to midnight. Afterwards, Dan reviewed my drafts late into the night so I could write new drafts before our next moot. The care that Dan put into my work, his recognition of my improvement throughout our preparation, and his confidence in me as a student attorney led me to go into the hearing with a cross examination outline with which I felt comfortable.

A few hours after refining my cross examination for the last time, I headed to downtown Boston for the hearing. I met Richard for the first time and introduced myself. We were all escorted to a plain, grey conference room where the hearing would be held, and we waited. At that moment came our first curveball: the Hearing Officer had a cold and would conduct our hearing by teleconference rather than in person. Teleconference, after all, was more like how I had practiced over Zoom. I hoped this was a sign that cross examination would go according to plan, too.

At the onset, the Hearing Officer asked the local agency official to give some brief remarks to frame the case. Richard began to look visibly frustrated. In that moment, Richard needed reassurance. I promised Richard that I would address inconsistencies between the local official’s opening remarks and his direct testimony during my cross examination. In feeling reassured, Richard trusted me: a student attorney whom he just met an hour prior and who never did a real cross examination before. That he had more confidence in me than I had in myself felt empowering.

Lisa directly examined Richard, and I directly examined his witness after opening statements. We solicited testimony on a year of interactions with the local official and the details of ten exhibits of paperwork that the official refused to accept. It took three hours. Multitasking made those three hours exhausting. While orally asking my witness questions, I mentally reviewed a checklist: Did the witness cover each exhibit and discuss each interaction with the local agency official?

There was no time to dwell on cross examination after wrapping up direct testimony. I asked the local agency official about each reason that he terminated Richard from Chapter 115 benefits. If the official would stray off course, I had the text of regulations and the exhibits right in front of me for follow-up questions. After a few questions about the factual basis of the denials, to my surprise, the local agency official admitted our theory of the case! He borrowed our own words to say that he threw whatever reason he could to deny Richard of benefits to see what would stick! I fulfilled my earlier promise to Richard. I wrapped up quickly to end the cross examination on a high note. All I had to do in closing argument was remind the hearing officer that the opposing side admitted our theory of the case. Richard was right to trust in me.

We decompressed after the hearing through a meal with Richard. I learned about Richard’s time in service and his life in Massachusetts, which I could not do before the hearing. As Lisa walked him out of the room to say goodbye, I heard Richard break down into tears. I, too, followed. The hearing gave him hope that he would soon return to a life that he lost a year ago.

In that moment, I recalled our first clinical seminar meeting. Dan had reminded us that the clinic takes hard cases and outcomes can be unpredictable. Disappointments inevitably happen. What he did not tell us is that working our hardest to represent a client is itself a huge victory. That a few attorneys volunteered their time to help Richard ensured that he was no longer forgotten and could have his story fully heard.

I still had work to do to turn Richard’s moral victory into a tangible victory. DVS, like other administrative agencies, does not require a pre-hearing brief. As one last opportunity to make our case to the Hearing Officer (and to concisely and helpfully present three hours’ worth of testimony), we submitted a post-hearing memo. Now, I officially had a hearing under my belt! All we could do was wait.

After my semester in the clinic was over, Richard gave Lisa permission to share the great news with me that he received a decision in his favor. DVS reinstated Richard to Chapter 115 benefits and awarded him back benefits. The impact on Richard’s life could not be understated. With some financial stability through Chapter 115, he could afford a place to live, no longer skip meals, prioritize his health. I am proud that I could transform Richard’s life for the better and am still amazed at the life-transforming responsibility that the Veterans Law clinic places in its student attorneys.

*Client’s name has been changed for confidentiality