Students Help Draft Supreme Court Brief

December 20, 2012 —

Kirk Goza (L’13) and Karin Herzfeld (L’13) headed to the Supreme Court on November 27 to hear oral arguments in U.S. Airways v. McCutchen, a case involving the Employee Retirement Income Security Act (ERISA). They were quite interested in the outcome. And why not — since they researched and drafted an amicus brief on the case.

"Having the opportunity as a law student to work on a Supreme Court amicus brief has truly been both a challenging and rewarding experience,” said Herzfeld. “The fact that we were actually able to attend the oral arguments in person … makes it that much more exciting."

Visiting Professor Brian Wolfman, who filed the brief on behalf of Consumer Watchdog, a national advocacy group, said the students did “terrific work.” 

“They were presented with a legal research and writing task that would have challenged even experienced appellate lawyers,” said Wolfman, co-director of Georgetown Law’s Institute for Public Representation. “Yet in fairly short order they drafted a first-rate brief.”

The case goes something like this: James E. McCutchen was injured in a car crash and his former employer U.S. Airways paid $66,865.82 for his medical expenses under its health benefit plan. But the company later demanded full reimbursement when McCutchen recovered $110,000 from his suit against the driver and from his underinsured motorist coverage. 

When McCutchen paid his attorneys for their work he was left with less than $66,000, yet the federal district court held that he should pay back the full $66,865.82 — leaving him in the hole. 

“McCutchen argues that U.S. Airways should, under an equity principle known as the common fund doctrine, at least have to share proportionately in the legal fees,” Wolfman explained. “Otherwise, U.S. Airways would ‘free ride’ on McCutchen’s lawyer’s work, and if not for that work, U.S. Airways would have recovered nothing at all.” 

Lawyers, consumer advocates and health insurers are watching the case closely, he said.

“Most lawyers never get an opportunity to prepare something for the Supreme Court, much less to do so before graduating from law school,” Goza said. “Just another example of the amazing opportunities available to Georgetown students through the clinical programs.”

For a story about another IPR clinic case that will be heard by the Supreme Court in February, click here.

For Wolfman’s views on the case, click here.

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