We have talked about the typical fee agreement when you are applying for Social Security disability benefits before. But I am often asked what is maximum someone can charge?

Social Security regulations set a cap for attorneys fees.  Originally, the fee cap was $4,000, then $5,300, and as of June 2009, the cap is $6,000.

Unless the representative is charging fees under a fee petition, the most the lawyer can charge is 6,000. Or, if you are reading this before June 2009, $5,300. 

For more information, check out all the articles dealing with attorney’s / lawyer’s fees.

A “fee petition” is a way your lawyer asks Social Security for fees for his services.

I though attorneys were paid a percentage of what I get?

Percentage-based contingency fee agreements are the most common way attorneys get paid in Slocial Security cases. However there are two ways an attorney might get paid.

Fee agreements based on a percentage of back benefits:

If you win, the attorney gets 25% of your back benefits up to a $6,000 cap (this is an increase from the $5,300 cap in effect before June 2009). The 25% or $6,000  is a standard fee agreement that Social Security will almost always approve if the case is won and results in back benefits.

Fee agreements based on a fee petition:

This is the wild west of fee agreements. Your attorney has to itemize his time and ask Social Security to be paid a certain amount. Social Security will approve whatever it sees fit, which may be more or less than $6,000.

When are fee petitions used?

Typically, fee petitions are required when the attorney works on an overpayment case. However, they are also necessary you hired two attorneys and the first attorney has not withdrawn or has not waived fees. This often comes up when a person has moved and had to hire a new attorney.

Fee petitions are also used if a person disagrees with Social Security approving the standard 25% fee agreement.  If that happens, the attorney must petition Social Security to have his or her fees approved.

Read more about attorney’s fees and fee petitions.

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?

Even though it often takes a year or even two years to get your Social Security hearing, you may find that you are not ready when the big day finally comes.

Is there any way to continue, postpone, or delay my Social Security hearing?

Yes. You can request a continuance to postpone your hearing.

Lets look at how to do this.

Fortunately, there is no formal motion that has to be submitted to request a continuance. In my office, I usually send the judge a letter explaining my reasons for requesting the continuance.  

Then I follow up with the judge’s clerk to see if the motion has been granted or denied, by calling the Office of Disability Adjudication and Review (the Notice of Hearing lists the phone number to use) and asking to speak to the judge’s “pre-hearing” clerk.

Common reasons for a continuance include:

1. You are sick or hospitalized.  This normally means physical illness, but it could include psychological problems such as not being able to interact with anyone that day.  However, it might be best for your case for the judge to see you on a bad day.
2. A close family member is sick, hospitalized, or has recently died.
3. You are looking for a lawyer.
4. You just hired a lawyer and your attorney needs time to review the file.  Note:  if you have a lawyer, the attorney will normally make this request.  
5. You have an upcoming medical test scheduled that is expected to shed light on your disability.  Note: it is best if the test is actually scheduled; not that you merely hope that you might somehow be able to get some kind of test done. 
6. You will be out of town or out of the state on the hearing date.
7. You are in school and the hearing is during or just before finals.
8. You are or will be incarcerated during the hearing.  Note: if you are or will be in prison, Social Security may move your case to a prison docket. Many appeals offices have at least one judge who travels between the prisons to hold hearings there.  As discussed before, you cannot receive Social Security benefits while incarcerated for a felony, BUT Social Security may hold a hearing in prison to address your eligibility for benefits for the time before you were incarcerated or to address eligibility for spouses or children of incarcerated individuals.

This is by no means a complete list.  Any good reason why the hearing should be continued will be considered by Social Security.  

However, keep in mind, requesting a continuance does not mean you will be granted a continuance. 

Are there bad reasons to request a continuance?

Sure.  While I won’t say that Social Security will never approve one of these reasons, I think the chances of success are pretty low:

1. You don’t want to go.  You can request that Social Security simply make a decision on the evidence in your file.  However, this usually does not produce the best results. 
2. You have already had 2 or more continuances.  If a Judge has already postponed your case even one time before, the judge may be unwilling to grant you another continuance without a darn good explanation of why you need another one. 

What were your experiences requesting a continuance? Tell me in the comments!

Gordon Gates writes about how he tries to make each case different and memorable when preparing to go to hearing.

I am always concerned that a particular claim will not get the attention it deserves at the hearing level, due to the tremendous workload at the Social Security hearing offices. Each administrative law judge decides several hundred claims every year.

…

I have an upcoming hearing with a client who has an unusual story. The medical evidence is very good, and the claim should be granted at hearing. Nevertheless, I am spending a great deal of time on the claimant’s story…, because it is so unusual. That story will be the hook that draws the judge into the case.

I agree completely!

In my office, I regularly meet with my clients and listen to their stories.  Every once in a while I hear something that rings a bell.  My eyebrows jump, and I make sure to write down that story in my notes.

Every individual applying for Social Security has had unique experiences related to their disability. It does not have to be anything big.  I am not talking about a trip to the ICU.

I am talking about uniquely personal experiences that highlight an individual’s disability.  

As I have written before, Social Security hearings are mostly credibility assessments.  Can the Administrative Law Judge (ALJ) believe what you tell him/her about how much your condition affects you. These unique stories can make your case memorable to the ALJ, and can make a big difference in the outcome of your case. 

This is another reason why it is important to work directly with a skilled attorney.  A good lawyer can help you identify the stories that can make a difference in your case.  

It also means if you have a lawyer, but you are just meeting with the legal assistant; the lawyer, the one person you are counting on to convey your case effectively at your hearing, may not know the story that could win your case. 

Click here to read Gordon’s article: Differentiate your Social Security claim.

What was your experience with a lawyer at your Social Security hearing?  Tell me in the comments!

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.

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!

If you are denied at your Social Security hearing by the Administrative Law Judge (ALJ), you have the right to appeal the judge’s decision to the Social Security Appeals Council.  

To do this, you need to file form HA-520-U5 “Request for Review of Hearing Decision/Order.”  You only have 60 + 5 days to get the appeal to the Appeals Council from the date stamped on the judge’s decision (5 days to receive the decision and 60 days to deliver the appeal).  

Note:  The appeal must be delivered by the 65th day!  Unlike filing your taxes, postmarking the letter on the 65th day is not enough.  The appeal must be in the Appeal Council’s hands no later than the last day. 

There is the possibility of filing late with the Appeal Council’s permission, but that is not something you want to count on.  

Here are a couple of things to keep in mind about the appeal.

1. The Appeals Council will not hold a hearing on the appeal.  The Appeals Council only does a “paper review” of the file.  
2. This means you must provide all your reasons for appealing and everything you disagree about the ALJ’s decision as early as possible; preferably along with the appeal.
3. Because the appeal form does not provide a lot of room to explain what you disagree with, attorneys often add a supplemental brief.
4. The Appeals Council mostly looks for legal arguments:  did the judge misapply the law?  While you can argue that the “facts” in the decision were incorrect (in legal terms:  that the judge’s findings were not supported by substantial evidence), the Appeals Council is mostly interested in whether the proper process was followed.  Because the Appeals Council is much more legalistic than the earlier appeals, you really should have an attorney helping you. 
5. The Appeals Council usually will not upset a judge’s factual determinations – even if they would have come to different determinations themselves – if there is a basis for the judge’s findings.  This is a critical point. The Appeals Council does not want to step into the judge’s shoes about findings of fact if they can help it. However, if there is a significant factual error which is not supported by substantial evidence, I will include it in my arguments. 
6. If you think the ALJ misquoted the testimony, or if you want to review the hearing tape for other reasons, you can request a copy of the hearing record. I previously wrote about this here.

Practice tip:  When I request the hearing tape, I file the appeal form with a cover letter requesting the hearing tape AND 30 days after the recording is sent to me to provide a supplemental argument based on the tape.  Note: the Appeals Council usually grants a shorter amount of time, but it is still useful to ask for 30 days.

If possible, do not wait until you are denied at hearing to hire an attorney. Many attorneys will not take a case if they hired after the hearing because there is very little time to review the hearing decision, become familiar with the evidence, and prepare a legal argument for the Appeals Council.  

It is much better to get an attorney before the hearing. If the case needs to be appealed to the Appeals Council, that attorney is already up to speed on the case.

Are you struggling with working because of physical or psychological impairments?  Have you stopped working because you just could no longer do the job?

You may be going back and forth on whether to apply for Social Security:

Maybe I will get better.  But, what will I do if I am not able to go back to work?

Filing for Social Security benefits is not something to rush in to.  But, if you are disabled, you should file as soon as you can. 

If you wait, you may loose several critical advantages. These include health insurance, access to medical care and financial support including savings, family or spousal assistance.

All Social Security disability cases require medical evidence.  The longer you wait to apply the greater the chance that your health insurance will run out or that you will be in a worse financial position to get the medical evidence you need.

• If you have health insurance, take advantage of it.  Make sure to take every opportunity to develop severity of your condition:  talk to your doctor about your disability, get tested, and obtain treatment.  The longer you wait after you stop working to treat, the greater the chance that your treatment options will be diminished.
• Tell your doctor that you are thinking of applying for Social Security and see what she or he says.  Having a supporting physician is often a critical part of a Social Security case.
• Get legal help early on.  Once you have started the application, start talking to attorneys.  A skilled attorney can help you gather evidence including statements from your doctor(s) in support of your disability.
• Get your medical records.  While Social Security may get most of the necessary records, you will not know what records they received until the initial decision is made.  If the decision is a denial, you do not get to obtain the missing records and ask for a new initial decision.  Your only option is to appeal and get your case ready for a hearing in front of a judge.  That may take an additional 6 – 18 months (based on my experience in Colorado).

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.

You are finally at your hearing.  The judge, wearing black robes, turns to you and asks:

“You last worked in 2003, right?”

It’s the “Dirty Harry” moment! You try to remember.  

Was it 2003?  Maybe it was 2004?  Or 2005?  Well, if the judge thinks it was 2003, it must have been 2003.

“Yes, judge. I last worked in 2003.”

Bzzt!  Wrong answer!

Do not guess the answer to the judge’s question; and do not accept the what the judge tells you about your history if you do not remember the answer yourself.  

Why? While the judge is not trying to suggest the wrong answer, the judge may be hearing between 7 – 14 cases that day.  There is a reasonable chance that the judge may get something wrong about the facts of your case.  If you accept the judge’s answer, and it is wrong, it may be very difficult to walk back your answer and still preserve your credibility.

It is fine to disagree with the judge if you know the suggested answer is wrong.  If you do not know, or if you cannot remember during the stress of the hearing, it is also perfectly acceptable to say, “I don’t remember.” But, do not guess.  

Your lawyer should have a summary of all of the critical facts and dates in your case.  If the issue is important enough, your lawyer can jog your memory with leading questions or refer to exhibits in your file which answer the judge’s question.

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.