Maybe you have moved out of state and had to get a new lawyer on your Social Security disability case. Maybe you fired your lawyer. Maybe your lawyer fired you. But now, you have to find a new lawyer!

What is going to happen to the attorney fees?

Do I have to pay both lawyers?

There are two things that can happen:

First, the first attorney may withdraw and waive fees. If the first attorney waives fees, there is no problem. You will not have to pay the first lawyer. However, you may still owe expenses – what it cost to develop your case (for example: costs for medical records).

If the first lawyer waives fees, they you simply have to deal with the fees for the second attorney. These articles deal with attorney’s fees in Social Security cases.

Second, if both attorney’s claim fees, everything is a lot more complicated.

You should know, there is nothing unethical about both your current and former attorney both asking for fees. Both attorneys worked on your case, and both may want to be compensated for their contribution to your case.

I know many of you may be saying:

My first attorney didn’t DO anything!

My first attorney said she would not charge me!

My first attorney did not win my case, why should I pay them?

Everything depends on the circumstances of your case. If your attorney said he would waive fees when you changed lawyers, then he will probably not charge you. Just make sure to get it in writing!

Also, always remember in Social Security cases, the lawyer (or non-lawyer representative) CANNOT charge you any fees UNLESS Social Security approves the fees. Note: this only applies to fees and not the expenses in the case (which you have to pay).

If you have two (or more) lawyers asking for fees in your Social Security case and they are not part of the same firm, each lawyer must file a fee petition with Social Security.

The fee petition also has a place for you, the client, to sign if they approve the fees requested by the attorney.

My lawyer sent in a fee petition and I never signed anything!

The client signature section of the fee petition is optional. If the lawyer and client agree on the fees, there is a space on the fee petition for the you to sign. However, the lawyer can still submit a fee petition even if the client disagrees on the amount. Before you say this is unfair, please remember that Social Security lawyers work for you for 6 to 24 months before they hope to be paid. There are clients who will happily work with an attorney and then contest the attorney’s fees after the case is won. Letting the lawyer file a fee petition without the client’s approval protects the lawyers time investment in a case.

Getting back to the situation where you have two lawyers, each lawyer asks Social Security to approve fees for their work. Not only does each lawyer ask for a dollar amount, they have to explain exactly why Social Security should approve their fees.

Normally, after the lawyer sends in the fee petition, Social Security send a letter to you, the client, asking for your input. If you disagree with the amount the lawyer is asking for, or if you feel that the lawyer deserves nothing at all, this is your chance to let Social Security know.

After the fee petition and the response is provided to Social Security, the judge in the case will issue a decision. Basically, who gets paid and how much. Please note: this process can take months!

So, will I have to pay twice?

The only thing I can say is “maybe.” If you hired more than one lawyer, you may have to pay for the reasonable value of each attorney’s services.

Meet the most expensive “associate” in most law firms.  More expensive than a regular lawyer.  More expensive than the named partner.  It’s … the photocopier.

I was recently reviewing the charges for a one of my clients who was previously represented by a national law firm.  Do you know how much they were charging for copies? .35 cents a page!

That’s not all! Here is their price sheet:

$0.35 per page for photocopies

$1.00 per page for faxes

$2.50 per long distance phone call

This adds up fast! In many law offices, the photocopier earns more per hour for the firm than the lawyers!

Next time you talk to a lawyer, do not just ask about fees, ask about the expenses!

• How much will you charge me for copies?
• How much will you charge me for faxes?
• How much will you charge me for long distances calls? 
• What other expenses will I have to pay?
• What are the average expenses in a case like this.
• And, here is the big question, what is the maximum I might have to pay?

Many lawyers will set a cap on the expenses and if they cannot charge you more than the cap without your prior approval.  This prevents run-away, surprise charges at the end of the case. 

Since going digital (”paperless”), I have done away with a lot of these charges which make clients feel like they are being nickel and dime-ed. Here are my standard charges:

$0 for copies

$0 for faxes

$0 for long distance telephone calls

$0 for postage

Yes, these things cost my office some money, but so far my clients have not abused my goodwill, so I do not charge them for these services.

99% of the time, I just ask my clients to pay for the cost of their medical records. And, if my clients can get their records on their own, there may be no extra charges. 

How about you? What kinds of things is your lawyer charging you for?

That’s right. A Home. Study. Course.

Do you want to be represented on your Social Security disability case by someone who took a home study course?

Is there a price difference between hiring a lawyer and a non-lawyer representative?

Nope.  The video clearly states, non-lawyer representatives can earn up to $5,300 per case (the maximum allowed by Social Security).

So, since the price is the same, consider the following:

You waited two years or longer to get your case in front of a judge.  Your future, the money you are going to live on, and your health insurance, depends on the outcome of your disability case. Who do you want representing you?

Do you want to be represented by an attorney who …

• Went to law school,
• Passed the bar,
• Is regulated by, and maintains good standing with, the state bar,
• Fulfills Continuing Legal Education requirements.
• Is regulated by Social Security,
• Maintains malpractice insurance,
• Specializes in Social Security disability cases. Disclaimer: Colorado does not certify lawyers as “specialists” in any field.

- Or -

Do you want to be represented by someone who took a home study course?

While I generally take a dim view of non-lawyers representing disabled individuals. There are non-lawyers representatives whom I respect. Tim Moore of My Disabilty Blog is a former Social Security disability examiner. He is someone who knows the system from the inside. So, there certainly are good representatives who are non-lawyers.

When you look for a representative on your, or your child’s, Social Security disability case, make sure to ask the following:

• Are you a lawyer? If not, how did you learn how to be a representative?
• How long have you been in practice?
• How long have you been handling Social Security cases?
• What percentage of your practice is Social Security cases?

For more information about finding a good representative, check out these articles.

I have just watched the video again and I can’t express how disgusted I am by it. I view representing the disabled as a calling, not a career alternative during an economic downturn.

Good luck out there!

Here is a frequent question:

When should I hire an attorney to help me on Social Security disability benefits case?

Imagine you are skydiving for the first time.  Would you wait until you are in the plane going up for your first jump before asking how to open the parachute?

You may already know that many attorneys will not take a case until the initial application has been denied. But that is not always the case!

You can hire an attorney at any time:

1. Before you apply.  Some attorneys will help you apply and complete all the necessary paperwork and documents, online or offline. 
2. After you apply. After the application is completed and you have a receipt for your application, the attorney helps you gather evidence for Social Security’s initial review of your case. 
3. After the initial denial. This is when most people get an attorney.  If you have been denied, the attorney helps you appeal the denial and build up your case for the hearing with an administrative law judge (ALJ).
4. Once the hearing is scheduled / After the hearing has been continued.  CAUTION
5. After the hearing denial.  DANGER

Since I would not recommend learning how to skydive on the way up to your first jump, I believe you should hire a lawyer before steps 4 and 5.

Now that we have covered when you can hire a lawyer, let’s talk about when you should hire a lawyer.

Tips on when to hire an attorney/lawyer:

Get an attorney as soon as you decide you want one!  Do not wait until the last minute!  

Ok, so I really should get a lawyer early on in my case.  Should I hire an attorney before or after I get denied?

This is a matter of personal comfort.  During the initial application process, you are mostly filling out forms and Social Security is obtaining evidence on your case (at not charge to you).  An attorney can certainly help you and can increase your chances of being approved during the initial application and review stage. However, Social Security might approve your case during this initial stage even if you do not have a lawyer. 

So the question is, do you want to pay the lawyer 25% of your back benefits when you were filling out all the forms?

This grossly oversimplifies the issue.  But, this is what the question boils down to for many people.

Most people hire an attorney/lawyer to help after the initial denial.

After you are denied, the lawyer can help you complete the appeal, review your case for any problems, and help you build your evidence to get your case ready for the hearing in front of an Administrative Law Judge (ALJ). Also, the attorney can get YOU ready, so you know what to expect at the hearing and can calmly answer the Judge’s questions.

My hearing was continued to let me get an attorney.  You say I shouldn’t wait until the last minute.  Are you saying I shouldn’t hire an attorney?

NO!  If you did not hire an attorney earlier, you should still hire an attorney even if it is at the last minute. But, if you can hire an attorney earlier, the attorney can do a lot more for you.

Forget it, I will just do my best at the hearing and if I get denied, I will get a lawyer then.

Let me let you in on a secret: I refuse the majority of cases that come to me with a hearing denial, unless the individual is willing to start a new case.  Here is why.

But, what if I don’t want to hire an attorney?

You do not have to have a lawyer on your Social Security case.  Even though some attorneys try to scare you into thinking you have to have an attorney, you should not hire an attorney out of fear.

I personally believe, and statistics support this, an attorney can greatly increase your chances of winning. But, ultimately, the choice is yours.

Did you represent yourself at your Social Security disability hearing?

If you were denied, you may find it is difficult to find a lawyer to represent you if you 

Sadly, this is a common problem.  It is much harder to hire an attorney after you been denied.

Why?

It all comes down to TIME!  

You only have 65 day to appeal a hearing denial (5 days to receive the notice, and 60 days to get the appeal to Social Security).  Note:  the appeal must be received by the deadline. Postmarked by the deadline is not enough.

65 days is not a lot of time for a lawyer to do the following:

• Review the hearing decision
• Review the exhibit file
• Review your treating providers (doctors)
• Check for missing evidence
• Obtain missing evidence
• Review the medical evidence
• Prepare the legal argument for the appeal

Keep in mind that lawyers often work with a client for more than a year to get their case ready for hearing. To take on a post hearing case requires compressing all that work into a month or less. 

This is another reason to hire an attorney early on your Social Security disability benefits case.  If you are working with an attorney before the hearing, they will probably help you if you need to appeal if you are denied at hearing.

I have previously written about how Social Security (usually) pays your lawyer directly if you win your Social Security disability case.

But did you know that Social Security charges to do this.  The Florida Social Security Disability Blog (in my old stomping grounds of Ocala and Gainesville), discusses the Social Security “user fee.”

The Social Security Act requires SSA to charge an assessment or “user fee” to a representative who receives all or part of his or her fee through direct payment from SSA. The Social Security Protection Act of 2004 (Public Law No. 108-203) capped the user fee at the lower of either a flat rate dollar amount or 6.3 percent of the amount of the fee payable from past-due Title II and/or Title XVI benefits. The flat rate dollar amount is adjusted periodically based on the cost of living. Currently, the flat rate dollar amount cannot exceed $79.

Yup, Social Security charges $79 to send your attorney a check.  But, do not worry!  It does not come out of your benefits.  The money comes out of the attorneys fees and your lawyer cannot charge the fee back to you!

Once you hire an attorney to represent you on your Social Security case, you may find that Social Security does not want to release any more information to you.  This is especially true at the Social Security ODAR (Office of Disability Adjudication and Review) offices.  

Don’t worry, there is nothing nefarious going on.  

It is just a general rule that once you are represented by counsel, all communication goes through your attorney.  This prevents Social Security telling you one thing and your attorney being told another, or nothing at all.  

However, in my experience representing claimants in Colorado, Social Security will often release information to claimants (people applying for Social Security benefits) if they ask.  If you need to know the status of your case, or which Judge your case is assigned to, ODAR will give you this information.  

But there is a bigger concern here:  If you have a question, you AND your attorney should be working together to find the answer. You and your attorney are a team working together to get to a win on your case.  You need to share information.  If you know something which your attorney does not, that might weaken your chances of winning.

You should be meeting with your attorney (not just the legal assistant) on a regular basis to review changes in your treatment and symptoms, to keep you informed about what is happening in your case and answer any questions you may have.  These meetings are a great time to contact the ODAR office and get any information you may need.

The one thing people are most surprised about when they go to a hearing is that the lawyer does not do all of the talking. In fact, it is the claimant (aka “you”) who has to answer the Judge’s questions.  I hear a lot of questions and comments about this.  

I went to my hearing and my lawyer sat there like a bump on a log.

Why am I paying a lawyer, if I have to answer all of the questions?

What do you mean, I have to talk at the hearing; isn’t that what the lawyer is there for?

Why doesn’t a lawyer speak for you at the hearing? 

The reason is that a hearing is not a negotiation; a hearing is a mini-trail.

If you have seen Boston Legal, or any legal show on tv, you have seen the difference.

At the negotiation scene the two lawyers sit across the table from each other, trading barbs and telling their client not to say anything without the lawyer’s say so.  Then at the trial, the client gets on the witness stand and has to answer the two attorneys’ questions.

Hearings are like mini-trials:  there is a Judge, witnesses and procedures: like being sworn in.  It would be ridiculous to hold a trial and have an attorney testify for their client.  The Judge does not want to hear the lawyer’s explanation of your disability, the Judge wants to hear from you!  

As I have mentioned before, one of the main purposes of a hearing is to assess your credibility. The Judge already has the objective evidence. The Judge wants to see you.  See how you answer, see how you move, how you sit, see any problems you may have.

Since you are the person claiming a right to disability benefits, you are typically the chief witness in your case.  There may also be other witnesses such as family members (who have witnessed what you are going through), medical professions and even vocational experts.  But, first and foremost, the Judge wants to hear from you.

So, what does a lawyer do for me?

I work one-on-one with each of my clients to understand what they have been through, obtain proof of their disabilities through medical records and other evidence.  I also work with my clients, reviewing what they can expect at the hearing including what questions they are likely to be asked.

A good lawyer will help you prepare your case, and prepare you to go in front of a Judge. So, by the time the hearing is scheduled, you are confident and ready.

I earlier noted that Judges do not want the attorney’s explanation of your disability.  While it is true that Judges generally do not let the lawyer to act as a substitute witness, Judges often want the attorney to provide the following:

• A quick summary of the case.
• Identify which doctors supports the disability claim.
• Identify the exact date of treatment and the page numbers in the Social Security file, where the favorable records appear.

One of the big things attorneys do is becoming familiar enough with your file to be able to quickly identify where a critical piece of evidence is located. You may hear this kind of interchange at your hearing:

Judge: What support do we have for the sciatic pain radiating into the left leg?

Attorney:  Dr. Smith is providing treatment for the low back pain.  Her records appear at exhibit 4F and 15F.  There is mention of this particular symptom on March 23, April 17, and May 27 at the following page numbers ….

This conversation may not happen at every hearing, and the attorney may not have every symptom cross-referenced  like this.  But, a skilled attorney will help the Judge find the evidence necessary to put your claim in the best light.

Pop Quiz: Do you save money by waiting to hire a lawyer/attorney until your hearing is scheduled?

Answer:  No.

In a normal Social Security contingency fee agreement, you pay the same amount whether you hire an attorney a year before the hearing, or a week before the hearing.

Most Social Security disability cases are taken on a contingency fee agreement:  25% of the back benefits up to a $5,300 $6,000 cap. The new $6,000 cap goes into effect in June 2009.  Click here for more information about fee agreements in Social Security cases.

The main difference is how much time your attorney will have to help you!

Hiring an attorney early on has a lot of benefits:

• The attorney has more time to review and prepare your case.
• The attorney has more time to get you ready to answer the judge’s questions at the hearing.
• The attorney has more time to develop your medical evidence.

So, the question is:

If you are going to pay the same amount in legal fees, would you rather have an attorney working for you for 12 months helping you get ready for your hearing, or do you want to pay the same amount and just get a week’s worth of work?

There are times when dealing with a large company is great: buying a car, for example. You do not want to be working with “Joe’s Car Hut.”

But any legal matter, especially a Social Security disability claim, needs a personal touch.

As a lawyer handling Social Security cases in Colorado, I have heard many people who worked with a national firm, tell me that the first time they met their attorney was at the hearing!

That is unacceptable!

Would you get medical treatment by phone?

Would you undergo surgery without ever meeting the doctor?

Of course not!

You want a doctor who knows you.  If you get sick, you want to call your doctor. Is your Social Security case any less important? NO!

I am not a national office.  I am my clients’ home town Social Security lawyer.   My clients can call or drop in my Colorado Springs office and speak to me directly (even on Saturdays).

If you are buying a car, go for a big company.  When you want legal services, go for someone who will be there for you.

Do you have a rave or a horror story about a lawyer, share it in the comments!

Social Security lawyer Jonathan Ginsgerg has a great article about when NOT to fire your attorney and some of the unexpected consequences of kicking your lawyer to the curb!

A good point Jonathan brings up is that you may have a hard time finding a new lawyer willing to take your case:

Many lawyers are reluctant to accept cases where there has been a previous representation. Ethical, experienced lawyers do not want to get a reputation as “case stealers.

There is a second reason why lawyers are reluctant to take on a case that was previously the responsibility of another lawyer. Fees. …  [I]f more than one lawyer has filed an entry of appearance … [b]oth the new lawyer and the old lawyer will be asked to file a Fee Petition…

In my office, I rarely take on cases where there has been another lawyer unless that lawyer is willing to waive his fees (in which case I could use a Fee Agreement). Fee Petitions are time consuming and, in my opinion, they also do not reflect the value of a good lawyer’s services.

I have been the second, or even the third Social Security lawyer for some of my Colorado clients.  As Jonathan says, having to do a fee petition adds a lot of time to a case.  But, when I believe in a case, I will do it for my client.

Also, Jonathan cautions that if you are thinking of firing your attorney, make sure you do not do it for something the lawyer has no control over.  For example:  how long it takes to get your case decided.

Delays in Social Security cases are not the lawyer’s fault and there is little, if anything that the lawyer can do about the delays. The delays in Social Security disability cases are a function of the number of claims filed in your area.

In general, if you are not happy with how things are going on your Social Security case, talk to your attorney.  Let him or her know what is bothering you.  Any good attorney should  be willing to sit down with you (and your family) and discuss your concerns, frustrations and complaints.

Give your lawyer a chance to respond and make some changes.

ON THE OTHER HAND, I believe most people know if their lawyer is doing a good job for them or not. Have any of these things happened to you?

• You cannot get an appointment scheduled with the lawyer.
• When you call, you get passed to a legal assistant.
• The lawyer won’t return your phone calls.
• When you talk to the lawyer, he or she does not know what is happening in your case.

Ultimately, you may be paying the lawyer thousands of dollars on your case.  You deserve someone who will work for you.  So, clear the air with your lawyer, make sure the problems are within the lawyer’s control.  But, if you know your lawyer is not working for you, go ahead and find a better lawyer.

Jonathan has a lot of great material which I have only touched on.  Read the rest of his excellent article here.

Have you had a terrible or terrific experience with a lawyer?  Share it in the comments!

What if i hire a lawyer and they don’t do anything?

What if I am not happy with the lawyer?

I don’t want to be stuck with a big bill.

Fortunately, Social Security takes a lot of the worry out of hiring a lawyer.

You only pay if you win.

Most attorneys who specialize* in Social Security disability cases work on a contingency fee basis.  You only pay attorney fees if you win.  If you do not win, you do not have to pay attorney fees. The exception to this is in cases where there are no back benefits for the attorney to take fees out of, for example, overpayment cases.  In those cases, the attorney petitions Social Security at the end of the case to approve fees for the attorney’s services.  Social Security, not the attorney, decides what you have to pay.

Social Security puts a maximum cap on what you have to pay if you win.

Social Security caps the percentage an attorney can charge and the total maximum an attorney can receive for fees. An attorney can charge no more than 25% of the back benefits in the case, up to a maximum of $5,300 $6,000. You can read more about attorneys fees in Social Security cases here. This $5,300 cap may increase at some point in the future, but it probably wont be any time soon.  As of June 2009, the fee cap is increased to $6,000.

Social Security has to approve any fees an attorney charges you.

Not only does Social Security regulate the percentage and maximum fee an attorney can charge, you do not owe any fees until and unless Social Security approves the attorney’s fees. Not only does the attorney have to win your case, Social Security has to approve the amount your attorney will be paid.

The only way an attorney gets paid is by getting results for you.

Because of the regulations Social Security has in place, the only way attorneys can get paid is by winning. There is no padding hours, no extra jobs to be done, no “rust coating on the undercarriage”  The attorney only gets paid if you win.

This gives Social Security disability attorneys a LOT of incentive to work to get the best result for you!

Updated March 26, 2009.  CC photo credit: stephmcg

*Disclaimer: Colorado does not certify lawyers as “specialists” in any field.

Social Security fee agreements take one of two forms:

1. Contingency based: If you win, the attorney gets 25% of your back benefits up to a $5,300 $6,000 cap. The “25% or $5,300 $6,000″  fee agreement is a standard fee agreement that Social Security will almost always approve if the case is won and results in back benefits.
2. Fee Petition. This is the wild west of fee agreements. The representative has to itemize his or her time and ask Social Security to be paid a certain amount. Social Security will approve whatever fees it sees fit, which may be more or less than $5,300 $6,000.

2009 UPDATE: As of June 2009, the fee cap is increased to $6,000.

If an attorney asks you to sign a fee agreement that is not either for a 25% contingency, or based on a fee petition, watch out!

Why would an attorney require a fee petition based fee agreement?

One reason is that some cases, such as overpayment cases, have no back benefits.  So, the 25% fee agreement will not work (25% of 0 equals 0). In those cases, an attorney has to do a fee petition and may require a retainer which is held in a trust account until the case is over and SSA approves fees.  This is discussed in detail here.

Other times, an attorney will require a fee petition fee agreement because he or she wants to charge more than the $5,300 $6,000 cap.  If this makes you angry, hold on a moment. There are attorneys who take “lost cause” cases – cases where a person is trying to prove a disability started 10, even 20 years ago; cases which have taken more than 8 years with a the cases having multiple appeals to the Appeals Council and even District Court.  In those exceptional cases, a fee petition requesting fees in excess of the cap is reasonable. However, in most “regular” Social Security cases, the $5,300 $6,000 cap protects the client from overpaying for legal services.

Tip:  keep in mind this is only for fees (paying the representative for his/her time and experience. This does not include reimbursing the lawyer for expenses (any money the lawyer spends to develop the case, e.g. costs for medical records).  Expenses are separate from fees and you may have to pay expenses even if you do not win (and do not owe any fees).

Social Security regulates what a representative can charge.

Social Security recently loosened their rules about who can practice in front of the Social Security Administration. Until recently, only lawyers could provide representation in front of Social Security and charge a fee.  Now, non-lawyers can set up shop and provide representation on Social Security claims.

However, the cardinal rule is that a representative (lawyer or non-lawyer), cannot charge any fees unless it is approved by Social Security.

Unfortunately, this is where some non-lawyer representatives play fast and loose. They may charge you some money up front and may not refund it if they lose the case.  Some people do not ask for the money because, “well, they took my case and they tried their best.” However, under Social Security regulations, a representative cannot charge any fee (remember, this does not include the representative’s expenses in building the case) unless it is approved by the Social Security Administration.

Of course, you may have the same problem with a lawyer.  But, because of the higher level of regulation lawyers work under, they are are less likely to scam you.

I personally feel that since you are not paying any less for a non-lawyer on a Social Security case, you are generally better off getting a lawyer to represent you.

However, the touchstone of choosing a representative is deciding who is best able to help you.  Here are articles about questions to ask when choosing a representative.  Article 1.  Article 2.

Updated 03/26/09.

I have tried to give you as much information as I can about Social Security overpayment / repayment cases, because the chances of finding an attorney to work with you are not very good.

Many Social Security attorneys get paid out of the back benefits they win for the client (typically 25% up to a cap of $5,300.00 $6,000 as of June 2009).  But, when you have an overpayment case, the best outcome is you will owe $0.00.  25% of $0.00 is $0.00.

In other words, there is nothing for the attorney to take a percentage of, if they win. If you want legal help on an overpayment case you will probably have to pay some money up front. This may be between $1,000 and $3,000 depending on the complexity of the case. While my office does handle Social Security overpayment cases, they make up a small part of my Social Security practice because most people cannot afford the retainer.

Also, many attorneys do not take overpayment cases because of the extra requirement of petitioning Social Security to approve fees.  This takes extra time, beyond the time spent proving the case, just to try to get paid.

Is it worth hiring an attorney on an overpayment case?

Whether paying the retainer is worthwhile for you will depend on how much money you owe Social Security.

If you only owe $1,200, paying an attorney $1,000 probably does not make much sense.  But, if Social Security says you owe $15,000, then it may be worthwhile to pay an attorney for help.

Social Security has to approve any fees an attorney charges you.

When I say, “pay the attorney,” that is just short hand.  What I really mean is that you provide a retainer that is held in trust until the end of the case and the fee petition is ruled on by Social Security.

Under Social Security regulations, an attorney can almost never take any fee unless it is approved by Social Security. Note:  this requirement only applies to fees: paying for the attorney’s time.  Social Security does not have to approve what you owe your attorney for expenses:  money spent developing the case.

When you hire an attorney for a Social Security case, if you pay a retainer toward fees, the attorney can never take fees out of that retainer unless Social Security approves the fees.  You will know if Social Security has approved any fees because they will send you a letter, usually anywhere from 1 to 6 months after the case ends, telling what fees, if any, they have approved for the attorney.  If Social Security denies fees, they attorney must return the retainer.

What happens to the interest?

Good question!  In Colorado and many other states, there are special accounts called IOLTA (Interest on Lawyers Trust Accounts).  These are “pooling” accounts for holding multiple trusts when the amount of money is not large enough, or will not be held long enough, to warrant its own account.  Any interest earned is paid to that state’s IOLTA foundation and the money goes toward information and education about the legal system; not, I am sad to say, mountaintop retreats for retired lawyers. Ah well, a lawyer can dream, can’t he?

In Colorado, the IOLTA accounts are called COLTAF (Colorado Lawyers Trust Account Foundation) accounts.  So, you may hear COLTAF or IOLTA if you deal with a lawyer in Colorado.

Article updated May 13, 2009.

What is the number one question people ask when looking to hire a lawyer?

How many cases do you win?

But, this will only give you a meaningless answer. Here’s why:

Lets say you see two lawyers. The first one tells you he wins 50% of the time.  The other lawyer tells you he wins 70% of the time.

Is Mr. 70% more capable of winning your case?  Not necessarily.  

Lawyers know that giving you better win/loss records is good marketing. But, does it translate to better lawyer? Lawyers often take or refuse cases based on how they will reflect on their win loss records. Some attorneys will only take slam-dunk cases. Do you want an attorney who only takes easy cases. Do you want a lap dog, or a pit bull?

How about the attorney who only wins half the time. Does this put you off? Just because an attorney gives you lower win/loss record does not mean that attorney will not fight tooth and nail to give you the best chances of winning. It may just mean that lawyer takes cases other lawyers won’t touch. Winning 50% of tough cases means a lot more than winning 70% of easy cases.

So, how do you know if the lawyer takes easy cases or tough case.  You don’t. That is what makes focusing on win/loss records such a bad idea. 

So, what should I ask a lawyer during my initial consultation?

A better question to ask at the consultation is, “what are the problems in my case and how can we fix them.”

The lawyer’s answer to THAT question, will tell you a lot more about that attorney and whether you really want to have that person handle your case.  

It will tell you whether the lawyer really knows the law and can work out a plan of attack to fix the weaknesses in your case and build on the strengths.

Updated 05/10/09  photo credit: egarc2

Here is one question you should always ask when you are looking for a lawyer to help you with a Social Security claim:

What percentage of your practice is Social Security cases?

Generally, you do not want someone who spends less than one third of his/her time doing Social Security work handling your case.  When you want a job done right, you want a specialist.

However, do not be swayed by win/loss ratios.

I know this is counterintuitive. However, a lawyer who wins 9 cases out of 10 is not necessarily better than a lawyer who only wins 5 out of 10.

It all depends on which cases the lawyer took. Many lawyers will only take on easy cases. So, winning 9 out of 10, may actually mean they dropped the ball on an “easy” case. Other lawyers take on the really tough cases that no other lawyer will touch. If that lawyer wins 5 out of those 10 cases, that may be an impressive achievement.

Just keep in mind that pumping up win/loss numbers is as easy as turning away tricky cases.

I enjoyed attorney Gordon Gates‘ article about knowing who your judge is in your Social Security case:

The first thing I want to know when I receive a hearing notice for a Social Security disability claim is the name of the administrative law judge (ALJ) who will hear the case and decide the claim. It probably shouldn’t matter which judge hears your case, since they all interpret the same rules and would be looking at the same facts. But it really does matter. Each judge approaches a claim a little bit differently, and it is very helpful to know how a particular judge tends to look at a case. Also, each judge conducts the hearing in a particular way, so I prepare for the hearing in a way tailored to the ALJ who will hear the case.

I could not agree more!  When someone contacts me with a hearing already set,  I ask who the judge is on their case.

 Here are some examples of how judges differ:f

• Most judges have certain pet peeves.   Knowing them, and more importantly,  knowing what to avoid doing during a hearing can make quite a bit of difference!
• Some judges will accept certain evidence, while others will not.
• Some judges will allow you additional time after the hearing to provide missing evidence, others will not.
• Some judges are extremely well versed with the evidence in a case, while others depend on you, or your attorney, to not only know the facts, but also to be able to cite to the exact page where the evidence appears in the exhibit file.
• Also, there is a wide range of what judges will consider to be “sufficient evidence” to find a person disabled.

Knowing your judge may give you a critical advantage in your case. As Gordon says, “it is important, in my opinion, to obtain the assistance of a Social Security disability lawyer whose experience with the judges in your area.”

Nate Craig of Truth of the Matter Asserted has a great article on how easy Social Security makes it for you to hire and pay for an attorney:

Social Security cases are paid on a contingency basis, which means that the attorney can only collect a fee when you are successful in winning your case. … Currently this amount is 25% of the claimant’s owed back benefit or $5,300, which ever is the least amount. … If you are not succesful, you owe the attorney nothing [and Social Security] will send the attorney’s fee directly to the attorney…

In my opinion, this is a great deal. Of course, you can take that with a grain of salt, since I make my living representing people on disability claims in Colorado.

If you win, you pay 25%  of whatever back benefits you are owed. And, the attorney’s fees are capped at $5,300 $6,000.   If you do not win, you pay nothing — other than the attorney’s expenses in developing your case (usually between $100 and $200). Basically, you are simply reimbursing the attorney for any money the attorney spends in building your case. However, you are not paying the attorney for his or her time unless you win.

Can you imagine only paying a doctor if he makes you better, or only paying a mechanic if the squeak or rumble goes away? And then, you only pay after  all the work has been completed — a year or more later?

That is the deal you get when you hire a Social Security attorney! The attorney invests his or her time in developing your case in the hope that he or she can win your case, and gets paid by Social Security out of the back benefits that you win.

In exchange, you get the help of someone who regularly handles Social Security cases. This may be your first case, or you may have applied several times. But, wouldn’t you like to have the help of someone who has done hundreds of cases to be there beside you, guiding and helping you?

Read the rest of Nate’s article here.

Disclaimer: Colorado does not certify lawyers as “specialists” in any field.

Updated 05/02/09: fee cap increasing to $6,000 in June 2009.

Are you represented by an attorney on your Social Security case? You are? Terrific! You obviously know that your chances of winning your case increase significantly if you have a lawyer helping you.

Now, close your eyes – ok, wait until the end of this paragraph – then close your eyes and try to picture your attorney.

Can you remember what he or she looks like?

Do you have a better memory of their receptionist or legal assistant than the attorney who is supposed to represent you at your hearing?

Hmmm. If you cannot recall what your attorney looks like, what do you think your attorney remembers about you, and more importantly, about your case?

Unfortunately, there are a number of lawyers out there that simply take cases, then do nothing until the hearing is set.  Or, maybe you meet with the named partner at the law firm, then once you are signed on, you get passed off to a (very) junior attorney, or maybe a legal assistant.

If you call the lawyers office, do you ever speak to the lawyer?

It is not unreasonable to expect to be able to speak to the person who will be representing you at your hearing!

Just so you know, there are attorneys out there that will actually work with you to develop your case. This direct interaction helps the attorney develop a keener insight into your disabilities.  AND it helps the attorney show Social Security why you should be approved benefits.

But, if the lawyer does not take the time to get to know you and how your disabilities affect you, how is he or she supposed to communicate that to Social Security?

Keep in mind, you may ultimately be paying your lawyer thousands of dollars! In my opinion, that entitles you to some personal attention.

I recently met with a woman applying for Social Security disability benefits. She made multiple prior applications, but she never worked with a lawyer.

She had a serious back injury, which was well documented by MRI and CT Myelogram reports. She has had a number of doctors involved in her case over several years, including a number of specialists.

Yet, over and over again, she applied and had been turned down. She even appealed and took the case in front of a judge I know well, and she was still turned down. She asked what she could do?

I talked to her about the apparent inertia in Social Security cases. If you make a couple of applications, your chances of winning, seem to go down. Not impossible, of course. But, if trying to get Social Security is like pushing a boulder, then trying to get Social Security on a third or fourth application is like pushing a boulder up a hill!

I reviewed her treatment history and saw a number of records which could be extremely helpful. I also identified several specialists who could be contacted for medical opinions.

By the end of the consultation, together we had put together an plan of attack to build her case.

I am often asked, what will a lawyer do for me? I sometimes have a hard time answering this question. But this woman’s case helped me find an answer.

When you work with an attorney, you get someone trained in the ins and outs of the Social Security system to take a fresh look at the totality of your case. A lawyer can help you pull out the most critical threads, strengthen the weaknesses and weave together all the disparate elements into an easily understandable, convincing, and compelling explanation of why you are disabled.

The best attorneys make you feel empowered; like you can face any challenge. If you go to a consultation and do not feel that, keep looking. You just have not found the right attorney yet.