Monday, April 12, 2021
I "won" a major appeal this week. It wasn't in the courtroom, and it wasn't exactly a victory. Rather, after about two months of back and forth, my employer directed my health insurance company to cover two months of my daughter's specialized amino-acid formula. This "victory" came after I wrote, to paraphrase the representative for the insurance company, a "really good appeal." I laughed when he said this and replied, "Well, my job is to teach law students to write persuasive appeals." But, in reality, as I sat down late one night to write the appeal, I did think about principles I taught my students. I wanted to share that here, but first a little backstory.
Both of my kids have needed to be on amino-acid based infant formula for a milk/soy protein intolerance. The formula is very expensive--a small can costs over $40 and lasts us less than 3 days (assuming no waste). The formula is also hard to find--it isn't available in most stores, although some Walgreens carry it. We have had it delivered through a medical supply company. My husband and I are both state employees, and we have the choice of two companies for health insurance. For several years we were on one company, and they covered the formula for both kids with no problem. This year we had to switch companies due to a major restructuring of the state plans. Our kids see several specialists, and the new insurance company covered them better.
Of course, I didn't even think about the formula in making the switch. Well, the new company decided to not cover it. Among its many arguments were: (1) the formula is a plan exclusion and (2) it is standard infant formula and over the counter. We appealed the denial, and after claiming for about a week that they didn't receive the appeal and then initially refusing to expediate the appeal (I mean, it isn't like its her FOOD or anything), they finally denied the appeal. I got the appeal letter right around 5pm on Wednesday night, and I was livid when I read it. The letter said that I could appeal the appeal, and provided a fax number for me to send it to. I wanted to sit down immediately and type a multi-page diatribe against the company, but cooler heads prevailed (or rather, I needed to get the kids to bed before I had time to type).
When I finally had time to type, I kept three key principles that I teach my students in mind: (1) Lead from strength, (2) Be clear and organized, (3) Use strong persuasion not abusive language.
(1) Lead from strength--My best argument on appeal was that the insurance company in its denial letter misstated my daughter's diagnosis. The letter didn't list her milk protein intolerance, which was odd, since that is the diagnosis that requires her to have her formula. So, my first point in the appeal pointed to that misdiagnosis. I provided copies of her medical records stating her correct diagnosis, and I carefully listed her diagnoses in the letter, pointing out the incorrect language that the insurance company used. Similarly, in writing an appeal, start with your strongest argument, unless there is a threshold issue that you need to address like standing or jurisdiction. You want to put your best argument first, since that is your best opportunity to draw your reader (the judge!) in. Likewise, be sure to set out your affirmative argument first. Don't come out as too reactionary to either the adverse decision below or your opponent's brief. Of course you need to rebut some arguments, but set out your affirmative case first--showing how the law is in your place.
(2) Be clear and organized--I divided my appeal into three main arguments--the misdiagnosis, the mischaracterization of the formula as standard infant formula, and the failure to explain the plan exclusions. I set out these three points in my introductory paragraph and then used headings to set apart each argument. It was easy for the reader to follow. Likewise, clarity and organization are critical in an appellate brief. If there is one thing that judges almost universally agree upon it is that briefs are too long. Clarity and organization can keep the length of your brief on track, for example by avoiding unnecessary repetition. It can also help a judge follow your argument. I always tell my students that your point headings should serve as an outline for your brief.
(3) Use strong persuasion not abusive language--I will be honest. I struggled with this point. I used stronger language than I would recommend in a brief, but I also toned down some of my writing as I went along as I thought about this principle. My most strident language was calling their characterization of the formula as "over-the-counter" as "simply false." By the time I had written the appeal, I had also written several emails to the appeals unit, and some of those were a little harsh. I was frustrated at the amount of time I was spending on the matter and the specious arguments being raised by the insurance company. I also was annoyed because I felt that the company was just trying to delay until my daughter turned one and she could try a milk substitute. Finally, I was frustrated for all the parents of kids who have had to deal with this issue and who might not be lawyers or feel comfortable with the appeals process. These parents might also truly not be able to afford $500-$1000 a month on formula (on top of all the specialist doctor visits). My frustration definitely leaked into my written letters and emails. BUT, in general, you should not take cheap (or expensive) shots at the judge below or opposing counsel in your appellate briefs. Be persuasive, but don't call names. Sure, you can show how the judge made a legal error or how opposing counsel's case is inapposite, but you don't need to call them liars, lazy, manipulative, or state that they "ignored the law." Furthermore, rather than saying the law "clearly" supports you, focus on showing how the law clearly supports you. Strong persuasion is always better than strong words.
I hope that these little tips help you in whatever type of appeal that you are writing.