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Litigation Committee

Making the Case for Change What Every Elder Law Attorney Needs to Know About Impact Litigation

Litigation

By Carol J. Wessels, Esq.

NAELA is committed to bringing “impact litigation” that can improve the lives of your clients. The NAELA Foundation and the NAELA Litigation Committee are ready to help.

In NAELA’s Litigation Committee, we often discuss potential legal issues to raise in litigation that could improve the laws that affect our clients. This type of advocacy is called “impact litigation.” Impact litigation is critical to the practice of elder law because it is one of the most effective ways of testing changes to — and challenging flaws in — the benefit programs like Medicaid that affect our clients.

Impact litigation uses the courts to create systemic change, not just for a particular client in a case. Depending on the situation, impact litigation could take the form of a single case, a class action, or a series of cases addressing similar issues. Impact litigation is often just one part of a strategy to accomplish policy change and may be partnered with education and legislative advocacy.

Impact cases may be planned or unplanned. A planned impact case can be the product of months or years of strategy and planning. Plaintiffs may be carefully chosen and the planners might even create the situation that generates the litigation. An unplanned impact case is a situation that pops up and presents an opportunity to advocate for change. An unplanned case could become part of a planned litigation strategy by simply surfacing at the right time.

Every attorney who is involved in impact litigation has a vision of the ideal case for any particular issue. The truth is, there is rarely a case that has everything the lawyer dreams of. Here are some things that make a good impact case:

A good record: Many cases involving challenges to Medicaid or other benefits will come up through a state’s administrative review process. These appeals are always based on the “record” created at the initial administrative level.
• A good argument: while it might seem obvious, it is a necessary part of impact litigation to have at least the beginning of a legal argument to make change through litigation.
• A cooperative client: A cooperative client is one who understands that the case is bigger than the client him or herself.
• “Sympathetic” facts: Even though legal issues should be addressed on the law alone, we know that certain bad fact patterns can sway a judge in a close case.
• Lack of a simple solution: Clients with a simple solution usually are better off taking it.
• The ability to avoid mootness: “Mootness” is the concept that due to a change in the situation, there is no longer a case to decide. This could happen if the client dies, which is not unusual in elder law.
• Enough time: If you have a case or issue that you feel might be appropriate for impact litigation, the best thing you can do is to reach out at the earliest opportunity to bring it to the attention of those who can help. Don’t wait until the last minute.

If You Have a Case
NAELA is committed to bringing impact litigation that can improve the lives of your clients. If you have a case that you feel may present an impact issue, you should seek guidance and possible involvement from your local NAELA State Chapter and from NAELA’s Litigation Committee (email [email protected]). Also, the NAELA Foundation uses funds donated by NAELA members to “establish good legal precedent in matters of critical importance to older Americans and people with special needs.” Your donations make it possible for NAELA to be involved in impact litigation cases around the country.

About the Author
Carol J. Wessels, Esq. is the owner of Wessels & Liebau LLC, in Mequon, Wisconsin. She is a member of the NAELA Board of Directors and the NAELA Litigation Committee. For more information about the work of the NAELA Litigation Committee and impact litigation, see the full version of this article online at www.NAELA.org/News-JournalOnline.

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