Opportunities for JDs and EJDs in Administrative Litigation: An Overview
Why Administrative Litigation Is Hot
Many administrative litigation forums are available to both licensed attorneys and non-attorneys-and thus, to graduates with a Juris Doctor or an Executive Juris Doctor degree. This is good news, because administrative litigation is one of the hottest areas of law, and it is getting hotter every day. There are several reasons for this:
Two demographic phenomena are hitting the United States at the same time.
First, 78 million Baby Boomers (Americans born between 1946 and 1964) are "aging up" at a rate of 10,000 per day. The first Boomers turned 65 in 2011, launching a phenomenon that will not end until 2027. That is a lot of new potential clients coming onto the scene daily. Older people end up in administrative litigation forums to a far greater extent than their younger counterparts. One reason is that age 65 marks the age of initial eligibility for Medicare. Just prior to the great aging up, Medicare appeals were running at a rate of 100,000 per year. Those figures are likely to increase dramatically in the coming years. Seniors also become disabled at a higher rate than younger people, and the inflection point begins at around age 50. Given the Boomer population, this translates to a huge increase in Social Security Disability Income claims and workers' compensation claims.
Second, the U.S. now has 26 million veterans. More than 8 million Vietnam era veterans are now in their 60s and 70s and are applying for disability benefits in large numbers. A group of Yale law students recently filed a class action suit on behalf of Vietnam vets who might have post-traumatic stress disorder (PTSD), an illness that was only recognized long after the Vietnam War ended. If this class manages to get certified and the case is permitted to move forward and is successful, the number of Vietnam veterans' claims will likely go through the roof. More than 50% of the 2.6 million Iraq and Afghanistan War veterans are filing disability claims with the Department of Veterans Affairs' Board of Veterans Appeals (BVA). In addition, the more than 500,000 Desert Storm vets are also aging up and will soon hit the magic age of 50, when disability claims invariably escalate.
Trial Court Referrals
Increasingly, America's more than 1,400 trial-level courts are referring cases to administrative forums, mainly alternative dispute resolution (ADR) forums. Both the number and the variety of referred cases are increasing. Thanks to the never-ending flood of federal and state laws and regulations, litigation continues to increase and courts and legislatures continue to seek alternative means of dispute resolution to process their caseloads in a timely and efficient manner.
Who Can Work in Administrative Litigation?
Some administrative litigation is open to attorneys and non-attorneys alike. A law degree and/or bar admission is not a requirement for a significant number of administrative forums, including, most encouragingly, the three administrative litigation forums that hear the most cases: (1) Social Security Disability Income Claims Appeals, (2) Medicare Benefits; and (3) Veterans Benefits Appeals. Additional heavy-traffic administrative forums in which both attorneys and non-attorneys may appear include: the Equal Employment Opportunity Commission, Immigration Courts, Department of Labor, and Worker's Compensation courts in California and a number of other states.
The benefits of working in administrative litigation are substantial. Perhaps the greatest benefit for attorneys is the litigation training experience a lawyer absorbs in an administrative forum that can serve him or her very well should he or she desire to become a trial court attorney. Administrative litigation is a great training ground because it is conducted under relatively relaxed rules of evidence and procedure, is more predictable than trial litigation with respect to scheduling, is more disciplined with respect to hearings duration, and in certain forums does not include any opposing counsel.