Do You Really Need a Lawyer?

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If you have read our disability information, and perhaps some other materials on disability, you may feel that you can handle your claim by yourself. Besides, you aren’t working and don’t have much money and can’t afford to pay a lawyer to help you with your claim.

Is this a good idea?

Abe Lincoln once said: “The lawyer who represents himself has a fool for a client.” What this means is that even though someone may know — or think they know — the law, they cannot be objective about their own case. When I applied for disability myself, the first thing I did was hire another lawyer.

There is another saying: “A little bit of knowledge is a dangerous thing.” Disability law is very complicated in and of itself. For FMS, CFS, MCS and other environmental illness claims, there is the added feature that the medical profession is basically clueless about these conditions and there is much disagreement as to whether or not they even exist. This makes it easy for a claims examiner to deny the claim, and for that denial to be upheld on appeals.

There was a high profile criminal lawyer in Los Angeles whose fees for a murder case were “everything you own.” His rationale for this was that if he won the case, you would owe him your life, and if he lost, you wouldn’t be needing it.

You may not have thought about it this way, but your life is, in a sense, at stake in your disability claim. If you have FMS, CFS, or MCS and are unable to work now, you may get better in the future and return to work. On the other hand, you may not. Effective treatments for these conditions are elusive. Many people who have these conditions now will have them for life.

WHEN SHOULD YOU GET A LAWYER?

Well, you may be thinking, maybe this is true, but how about if I at least file the disability claim myself, see what happens, and then decide on hiring an attorney for the appeal?

There are two reasons why this is a bad idea. The first is delay. To give you an example from the Social Security system, let me show you some figures for the time it takes to decide cases at each administrative level:

Initial Determination Five Months
Reconsideration Three Months
Hearing Nine Months to a Year
Appeals Council One to two Years
Federal Court One to three Years

Now combine these with the approximate allowance (win) rates at each level:

Initial Determination One Third
Reconsideration 15%
Hearing 50+%
Appeals Council 5%
Federal Court 5%

As you can see by putting the two charts together, there is only a one-third chance that you will win your claim at the Initial Determination level. Since only 15% of the Reconsiderations are allowed, the chances are that you will have to go to a hearing to win your case. By combining the times for the Reconsideration and hearing levels, you can see that it will take you another year or more before you will have a reasonable chance to win your case if you have been denied at Initial Determination.

The situation is essentially the same when dealing with a private insurance policy claim. Once it has been denied, there is institutional resistance to reverse that decision. If you then have to go to court you will be there for many years, and your chances of relief — if it involves a employer-sponsored plan — are remote due to the review standard the courts must use in such cases. A state court jury trial will take even longer and will cost thousands of dollars just for medical and expert testimony.

The above figures are even worse for cases involving FMS, CFS and MCS.

The other reason is the Record. You may remember from school how if you were bad your teacher told you it would go on “your Permanent Record.” There may or may not really have been a “Permanent Record” in school but there definitely is one on your disability claim.

Everything that you say in writing, everything that you orally tell your doctor that he or she writes down on your chart, and everything that your doctor says to Social Security or your insurance company might as well be chiseled in granite on Mount Rushmore. It can never be erased and will follow you and your claim forever. If the wrong things get said somewhere in there, it can ruin your case for all time and nothing that is done by you or an attorney at a later date may be able to repair the damage.

HOW TO CHOOSE A DISABILITY LAWYER

Most people’s experience with professionals is with the medical profession. Doctors are extensively regulated in terms of what kind of problems they can treat. If you have simple health problem, your first stop is usually to see your family doctor, who is probably a general practitioner. If you have a more complicated situation than s/he can handle, s/he refers you to a specialist. Medical specialists have to undergo more extensive medical training and have to take special tests to be certified as a “specialist.” They even have special names, like “Internist,” “Pulmonologist,” “Cardiologist,” etc.

With few exceptions, this is not so in the legal profession. Lawyers go to a law school for three years and then take a bar examination for a particular state. The bar examination covers general areas of law like contracts, torts, divorce, real estate, etc. After that, with the exception of “admiralty” (Law of the Sea) and “patent” (Law of Inventions), there are usually no further certifications for specialties. (A few states have recently added things like “trial law,” “domestic relations,” “workers compensation,” etc.)

Lawyers are free to take any type of case, limited only by the rules of ethics, which simply state that a lawyer may not take any case for which he is not reasonably qualified, unless he intends to learn that area of law or associates himself with someone who is more familiar with it. If your case is the first one he has handled of that type, he does not have to tell you.

I am not aware of any states that have recognized speciality certification for disability law.

Within the field of disability law there are many types of medical problems that clients may have which need to be understood, at least to some extent, to properly handle the case. No medical training is required for an attorney to start handling disability cases, and very few disability attorneys that I have met have any type of medical background. Most were not even science majors in college.

It is therefore very much the prospective client’s job to be an educated consumer of legal services and ask the proper questions of the attorney to determine for herself if the attorney is really sufficiently versed in the area involved in the client’s case. Caveat emptor: let the buyer beware.

See 10 Questions to Ask Your Lawyer.

WHAT ARE THE FEES?

Let’s face it, the main reason people do not get a lawyer, or delay — possibly for too long — in consulting with an attorney is because they do not want to pay the fees. If you are not working and not receiving any type of benefits, this is very understandable.

The fees need not be as scary as you may think, however. In many cases the fees can be handled on a “contingency” basis which means that the fee is “contingent” on the outcome of the case. Most Social Security disability claims are handled that way. Fees on those cases are limited by law to no more than 25% of the benefits which have already accrued by the time the benefits are awarded (retroactive benefits) and are capped currently at $5300 for Hearings cases. Only “costs,” which are spent for things like medical records and reports, copying, etc. are the client’s responsibility, although sometimes a small fee is charged at the beginning to investigate the case and determine if the attorney wants to handle it.

Given the high stakes involved in a disability claim, the legal costs are very minimal.