Tuesday, October 8, 2013

How to Find a Lawyer

In the old days, before I got my license, attorneys could not advertise.  Bates v. State Bar of Arizona, 433 U.S. 350 (1977) changed the landscape.  Bates qualifies as a watershed decision that changed the landscape of how attorneys tell you, the consumer, about their services. 

Before Bates, finding an attorney required asking around.  Other people had used the attorney in the past, had dealings with the attorney, or knew of the attorney's reputation.  The good will of the attorney pushed the practice of law. 

But that isn't true anymore.  Many people find their attorneys the modern way, on the internet.  This is similar to the predecessor to the internet, the yellow pages.  The television provides fertile ground to market the attorney's wares.  Does the presence of an advertisement in the yellow pages, on television, or on the internet speak highly of the attorney's ability, reputation for honesty, or general integrity?  No.  The presence of advertisement in any media speaks to the willingness to spend money on an advertisement in the yellow pages, on television, or on the internet.  That investment leads to some measure of financial success when engenders more advertisement in the yellow pages, on television, or on the internet which serves to heighten the perception of ability, never implicating honesty or integrity. 

60 Minutes aired a piece called Disability, USA.  If that isn't enough, 60 Minutes Overtime has another internet piece What happens when the U.S. disability fund runs dry? The leaders of the Association of Administrative Law Judges makes the point in the aired piece that attorneys are in the disability practice because it is lucrative.  That is true.  Attorneys have to eat too.  So says Chief Judge Alex Kozinski in Moreno v. City of Sacramento.  So attorneys are not likely to engage in an area of practice that doesn't put food on the table and keep the lights on at home. 

So what does that have to do with picking an attorney?  Everything.  The truth of the matter is that the practice of most kinds of law becomes easier with time and experience.  Disability litigation before the Social Security Administration takes out the learning curve for the majority of winning cases.  Most disability cases are won or lost before the case gets heard by an Administrative Law Judge.  People without attorneys win a healthy percentage of their claims.  So we know that an attorney doesn't have to be very good at all to win 40% to 50% of the cases that he or she brings to SSA.  The problem is that to win 60% to 80% of the cases that an attorney has requires that person to either reject cases on the cusp or to work 50% harder on all the cases in the office. 

Those really are the three kinds of attorneys out there practicing disability before SSA:  those that do only marginally better than a lay person; those that select on the very best cases and reject the rest even though they are winnable; and those that work harder on every case resulting in lower case volume.  Within those three broad categories, there are variations and exceptions.  But you are the consumer and you need to find out whether your attorney throws everything against the wall with minimal or no effort, just to pick of the winners selected by the Administrative Law Judge or whether you attorney only takes the low hanging fruit if easy winners (you probably don't need an attorney), or if your attorney takes the responsibility of representation seriously and will do everything ethical to win. 

That is the fundamental problem.  To run a business, attorneys need to be either the minimal effort and see what sticks model or the very selective model.  The minimal effort and see what sticks model is just plain unethical.  It isn't representation at all.  The highly selective model discourages many valid claims but ethically represents those selected.  The last model, the over the top model, that is the attorney you want in your corner. 

So back to the topic after a bit of digression:

1.  Don't rely on advertisements, ever.
2.  If you must rely on advertisements, don't rely on ads to hide the name of the attorney, ever.
3.  Ask attorneys that don't handle your kind of case for a referral to someone that does. 
4.  Ask judges, expert witnesses, or others in the industry.
5.  If you have an attorney appearing at your hearing, ask him or her if he or she will get paid more, less, or the same if he or she wins your case. 
6.  Check out the attorney's reputation for skill, honesty, and integrity. 

Good luck.  Half of all lawyers are below average, in case you didn't know.