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Home / Missouri Lawyers Awards 2019 / Influential Appellate Advocate: David McCain

Influential Appellate Advocate: David McCain

david-mccainDavid McCain

Missouri Attorney General’s Office

David McCain owes his career trajectory to hard work and two different men with the surname Green.

As a junior at Baker University in Kansas, McCain, a business major, was required to take a business law class. He enjoyed the class, so he took others — constitutional law, sports law, other business law classes — all from the same professor, Lee Green.

“That’s what really sparked my interest, and [I] decided to go to law school,” he said.

After graduating from Baker in 2008, McCain attended the University of Missouri-Kansas City School of Law, where he served as the research editor of The Urban Lawyer Law Journal, and was a member of the Black Law Student Association. He graduated in 2010.

As a law student, McCain intended to go into a transactional practice area, such as corporate or tax law. But after he graduated, he clerked at the Kansas Court of Appeals under Judge Henry Green.

“And that’s when I really fell in love with appellate work,” he said.

Under Judge Green’s mentorship, McCain developed an affinity for writing and research while he honed his argument skills. He left the court to join the Missouri Attorney General’s office in 2014.

As an assistant attorney general and member of the office’s Labor Section, McCain represents the Second Injury Fund, which covers claims by workers whose pre-existing conditions are made worse by an on-the-job injury.

The fund’s money comes from a surcharge on the workers’ compensation insurance premiums that businesses pay. In 2005, the Missouri Legislature capped the surcharge at 3 percent, causing a shortfall that nearly caused the fund to become insolvent and forcing the state to delay payment of awards to thousands of people.

As of 2014, the state temporarily increased the surcharge but tried to limit the fund’s liability by barring claims for permanent partial disability, or PPD, occurring after the law’s effective date.

Weeks after the law went into effect, a carpenter named Douglas Cosby was injured falling from a ladder, worsening several prior injuries he suffered before the law changed. However, he was denied PPD benefits from the Second Injury Fund. Cosby’s attorneys argue that such a denial is unconstitutional. McCain decided to use Cosby’s case as a test.

“I think everybody who practices in this area wanted some type of finality,” McCain said.

The Missouri Supreme Court heard arguments on Oct. 24 but has not ruled on the case. The outcome of Cosby’s case could have a major impact on the continued financial health of the Second Injury Fund.

“It would affect the thousands and thousands of claims that have been filed, and potentially 10s and 10s of millions of dollars,” he said.

In addition to the Cosby case, McCain is involved with others working through the appellate process. Since 2017 he has also served as the Labor Section Unit Leader, managing four other attorneys and two staff members.

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