Plan to Expand Video Hearings - But Can Lawyers be Trusted?

Charles T. Halls’ Social Security News blog ran an interesting article about Social Security’s plan to expand the video hearing system.  Currently, video hearings take place with the claimant and their attorney (if they have one) at one ODAR (Office of Disability Adjudication and Review) office, and the ALJ at another ODAR office.  

The new plan is allow the claimant and their attorney to do the video hearing from their attorney’s office. So, instead of going to an unfamiliar location and endure the time and financial costs of travel, the claimant just goes to their attorney’s office and they do the video hearing there.  Of course, the attorney has to have the facilities (camera, speaker, microphones, video monitor, bandwidth) to perform the hearing.

Charles refers to a “press release issued by the National Executive Board of the Association of Administrative Law Judges (AALJ), a labor union that represents many of Social Security’s Administrative Law Judges (ALJs)” which raises concerns about this plan:

Judges would like to see steps taken to reduce the backlog and more quickly settle claims, however the use of video hearings originating from claimants´ lawyers laptops is not the solution. Claimants who have paid into the Social Security system throughout their working lives have a right to a fair hearing before a judge in a dignified setting. The new “laptop law” video forum has no provision for the judge to position or move the camera during the hearing. It deprives the judge of control of the hearing process and creates too many opportunities to game the system. It is not hard to imagine a claimant testifying from his lawyer´s office reading testimony from a teleprompter or being coached by another lawyer in the background.

I was about to reply to some of these concerns, but an anonymous commenter already beat me to it:

It would be fairly easy to tell if someone was reading testimony off of a teleprompter. Likewise the ALJ would likely be able to tell if a claimant was being coached by someone off-camera. These are two of the many reasons why attorneys would not bother to pull stunts like this while holding video hearings in their offices. Plus, if the judge is controlling the questioning, it would be way too much work to create a “script” for the claimant’s testimony AND work out a system to make sure the claimant reads the correct answers to the judge’s questions, all the while making sure to do all of this in such a way as to keep the ALJ from catching on. Oh, yeah, and there are rules of ethics/professional responsibility that require attorneys NOT do pull stunts like this.

I think Anonymous’ comments are right on the money.  

Also, if a lawyer is unethical enough to try to control the testimony, he will do so regardless of wether the hearing is in-person or remotely via video.  Any script than can be read off a teleprompter can be memorized and recited. Off-screen coaching can just as easily be turned into subtle cues (a pencil tap, an ear pull) given right in front of the judge during an in-person hearing.  

I am more concerned about a further reduction of video quality if video hearings move from ODAR offices to attorneys’ offices.

Hearings are largely credibility assessments. The ALJ already has the objective evidence. The judge wants to see the claimant.  See how they answer, see how they move, how they sit, see any physical discomfort.  

It is bad enough doing a hearing over a pixelated screen with a slight delay (which may be misinterpreted as hesitation or an attempt to formulate the “right” answer). Further reducing the quality of the telepresence just increases the risk of misreading facial responses or body language.

I want full and fair hearings for my clients too.  I am not worried about attorneys trying to manipulate the hearing.  I am concerned about the judge’s ability to adequately see and evaluate my client. 

Read Charles’ entire post here.