Black Lung Clinic Awaits Decision in Recent Fourth Circuit Case

Lexington, VA Monday, December 11, 2006

Mary Natkin and Kate Speiker

On Nov. 30, Kate Speiker ('07L) argued before the U.S. Fourth Circuit Court of Appeals in Terry v. Hobet Mining Company. Speiker, who has participated in both the Black Lung Clinic and Public Prosecutors program at the Washington and Lee University School of Law, argued on behalf of the late Harold Terry and his wife, who have been fighting the mining company with the assistance of the Black Lung Clinic for nearly ten years (see related story).

"There is a great deal a stake here," said Mary Natkin, law professor and director of the Black Lung clinic. "If the 4th circuit overturns the benefits awarded to Harold Terry, then Mrs. Terry would have to pay back thousands in interim benefits, and that's money she simply doesn't have. She barely gets by on what she has."

Natkin anticipates that the 4th circuit will uphold the benefits award, which originally was granted in 1998. "Mrs. Terry was well-served," added Natkin. "After the oral arguments, several law clerks told Kate that her presentation was the best student argument they had ever seen."

Speiker, a third year law student who hails from Minnesota, was quick to share credit for her success with the Black Lung Clinic program and her fellow students. In the weeks leading up to the oral arguments before the court, Mini Kaur '07L, Nathan Deen '07L, T.J. Maas '07L, and Beth McKee '07L, along with several law faculty members, participated in practice "benches" during which they helped Speiker explore the issues of the case and refine her answers to questions they thought the judges might ask.

"I've been living and breathing this case for a year, reading medical history, writing briefs, arguing before the Benefits Review Board," said Speiker. "The clinic gives us a great advantage because we can put in much more time than a practicing attorney can." Students from the Black Lung Clinic typically face-off against appellate specialists hired by the mining companies who don't have the student's extensive knowledge of the cases, and it shows in the clinic's track record. Fifty percent of the cases taken on by the clinic are won, compared to a national average of only 7 percent.
 
Speiker's appearance was only the sixth oral argument before the 4th Circuit by a Black Lung student, though two more cases are currently pending. Natkin says it is likely the court will choose to hear oral arguments in those cases as well, and if so, two students who participated in the Terry case, Mini Kaur and T.J. Mass, will get their chance to argue before the 4th Circuit.

A decision in the Terry case is expected from the court in roughly two months. In the meantime, the Washington and Lee community will get a chance to see the 4th Circuit Court of Appeals in action when it hears a day of oral arguments in the Millhiser Moot Court Room on Friday, February 2, 2007 at the School of Law.

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