Editor’s note: Cody Fenton-Robertson is a law school student at Seattle University. He spent this past summer interning with Solid Ground’s Family Assistance Program, which provides free legal assistance regarding public benefits. This account of his time with us is taken, with Cody’s permission, from SU’s Public Interest Law Foundation Journal Project website.
Cody Fenton-Robertson was one of two legal interns who worked alongside Family Assistance’s attorneys during summer 2012 to provide free legal assistance to people regarding public benefits. The interns at Solid Ground do much of the same work that the attorneys do: They conduct intake interviews, research issues, request and comb through discovery (i.e., material which may lead to admissible evidence), and represent clients in administrative hearings. Cody was extremely excited to have the opportunity to intern at Solid Ground because of his larger desire to work in public interest law and provide legal assistance to groups of people who have been marginalized by our society. The internship at Solid Ground also allowed Cody to gain experience working and communicating with clients, a skill that Cody believes to be invaluable to his future career goals.
Early on in my internship at Solid Ground, I discovered a single sentence in the Washington Administrative Code that killed a case I was working on. Because of this particular WAC, my client had no argument to make to prevent DSHS from cutting his family’s benefits. After discussing the case and my research with a supervising attorney, the attorney agreed with my analysis.
“Now you have to call the client and tell him that his case has no legal merit and that we will not be representing him in his fair hearing,” said my supervising attorney.
I knew coming into this internship that I would be working with people who were truly in a state of need and desperation. I did not realize how frequently I would have to tell people in such a state that there is nothing I or anyone else could do to help them.
On that particular day, it was not only my first time making such a call, but it was my first time calling a client through an interpreter service. My first attempt at calling the client was cut short when the client was dropped from the conference call. I tried again, and again found myself in a two-way call with only myself and the interpreter. Eventually I got both the client and an interpreter on the phone at the same time, and I told him the bad news.
Of course, he did not understand. He didn’t understand because the law does not make sense, and because the application of the law feels unfair. I empathized with him and apologized, and then I heard the interpreter apologize in my client’s language. I didn’t need the interpreter to understand the client’s last word before the conversation ended: “Okay.”
It was the sound of a man’s frustration at realizing his only choice was to accept the unfair answer. I thanked the interpreter and hung up the phone. I left the internship that day feeling defeated.
I want to work in public interest law because I want to help people. Before starting this internship, I didn’t realize how often that would entail telling people that I could not help them. For every five calls I get on our intake line, one, maybe two, are cases that our office can accept. The rest are cases that I either have to refer elsewhere or are cases where I can immediately tell there is no legal merit. Of the cases our office accepts, at least half of them turn out to be unwinnable once we get discovery from DSHS. If the case looks like there is legal merit, there is still the possibility that the ALJ will disagree.
It can be depressing to think about.
But even so, I have found this internship incredibly rewarding. Aside from the value derived from the immense amount of practical experience I am getting in speaking with clients and drafting letters to adverse parties and requesting discovery and conducting investigations of sorts, there is another kind of value to this internship. The clients are incredibly thankful. I have had clients call in and, after listening to their story and determining what their legal issue is, I have had to tell them there is nothing we can do and explain why. Even so, those clients have still been immensely thankful and just happy to have someone explain the reason behind what was happening.
So I guess one of the things I have taken from my internship at Solid Ground so far is that “helping people” has a broader definition than I originally thought. Sometimes helping can just be listening.
Opposing DSHS in fair hearings is a lot like playing blackjack with a dealer who can rewrite the rules as he likes. We can call out DSHS for cheating, but if we do it enough times, they will just rewrite the rules to make it so what they are doing is no longer cheating.
The Washington Administrative Code states that DSHS must supply a petitioner with his or her hearing packet (the evidence being used against them) no later than five days before their hearing. Time and time again, this rule is broken. Pro se litigants are given their hearing packets as they step into the hearing, and they have no idea that they were supposed to get the evidence days earlier, or that they have a right to ask for a continuance. Instead, they go through the hearing without any knowledge of the laws or evidence being used to deny or terminate the benefits they rely on to survive. It is truly infuriating.
This summer, our office at Solid Ground has adopted a new policy: We are no longer smiling and being friendly while the DSHS hearing representatives break the law in ways that are prejudicial to our clients. We have begun aggressively filing motions to compel discovery and holding prehearing conferences with ALJs in order to get DSHS’s misbehavior on the record. We want the Office of Administrative Hearings to understand that if a client with representation has to make such aggressive gestures just to get the hearing packet that is required by law, then the 98% of petitioners who are appearing pro se have absolutely no chance at a “fair hearing.”
This new policy has allowed for me to gain some great experiences. I have written, argued, and won motions to compel discovery. I have been able to inconvenience the lives of people who seem to be bending backwards to incorrectly apply the law and break the rules. However, our office is working under a constant fear. If we make too big a stink, if we make DSHS work too hard, the department might just rewrite the rules. The department will amend the WAC to say that that the department does not owe our clients discovery until 30 minutes before the hearing.
So there is a tightrope we are walking. We want to stir up enough dust to encourage a change in behavior, but not enough dust to catch Olympia’s attention.
Meanwhile, my caseload has expanded to over 20 cases. I have a hearing next week that I have yet to get discovery for (surprise, surprise), and a massive hearing the week after that I have been preparing for nonstop for the past week.
This work is infuriating, frustrating, never-ending, and I really enjoy it.