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.

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?

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.

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

Another blog recently wrote that if you go to your hearing without an attorney, the judge will assume you have no case, won’t treat you with respect, and is more likely to deny you.

Not surprisingly, they are trying to sell you their legal services.

Now, I certainly think getting an attorney is a good idea.

• Statistically, your chances of winning are better if you have an attorney.
• An attorney can help you collect evidence.
• An attorney can evaluate your case for weaknesses and help you build the strongest case possible.

BUT, you should not hire an attorney out of fear.

I cannot speak about how judges in other jurisdictions handle cases, but I cannot think of a single judge I have dealt with that has not taken extra care when working with an unrepresented claimant. At a minimum, the judge will go over your right to representation and will often postpone the case to make sure you want to proceed without counsel.

If you go through with the hearing without counsel, by Social Security’s own regulations, the judge has special duties to make sure your hearing is handled fairly.

You may be saying that regulations will not guarantee that you will be treated fairly. True enough. However, there is no reason to assume you will become a victim if you go to hearing without an attorney. Spreading fear is just a cheap strategy to try to get more clients.