Continuing legal education is imposed on lawyers by the Missouri Bar Association and the Missouri Supreme Court, and right before the November election I took a day to fulfill the requirements.
The only CLE show in town at the time was a seminar presented by the Missouri Association of Trial Attorneys on using a vocational expert in Social Security, workers’ compensation, divorce, and personal injury claims. Though this program was unlikely to benefit any of my clients, who are mostly imprisoned violent criminals, it fit into my schedule perfectly. And I knew I would not need to worry that my possible failure to master this new material would jeopardize my ability to claim credit for attending the presentation. The CLE requirements demand no accountability on the lawyers’ part for the material put forth. Indeed, the CLE requirements are only to pay your money (in this case $100), and register reasonably near the beginning of class. Neither proficiency nor further attendance is demanded. The gentleman seated next to me, for example, arrived around 10:00 a.m. and was gone after lunch.
The seminar attracted a small audience, in part because lawyers have been discouraged by “this administration” from pushing disability cases. The man next to me volunteered that he used to do a lot of Social Security Disability work—that is, trying to prove that a client cannot work anywhere in the country at any job in the economy for a twelve-month period (which is considered permanently)—until the judges started “screwing me out of my fee.” A lawyer on a case that had both Workers’ Compensation and Social Security Disability aspects would be paid for only one, my neighbor complained, on the reasoning that the work done on both was identical to the work needed for just one—”not that I wanted to double dip.” (In Missouri a lawyer gets 25 percent of a Workers’ Compensation award; his fee is provided by statute.)
The featured vocational expert appeared to be an honest man genuinely devoted by training and instinct to getting people back to work. Everyone knows that some disabilities preclude work, and fairness requires that disability income be paid in those cases. However, an innocent observer of this seminar would have concluded that deceit and subterfuge are more important than disability in getting a person compensation. The initial focus in handling hearings before an administrative law judge is not just to win the case for the client, but to guarantee a second chance in the event of a loss. One lawyer-panelist suggested the employment of a device he said he had learned in a CLE on criminal law: “trick-the-judge questions.” These are hypothetical suggested by attorneys to the judge that are probably improper for one reason or another. If the judge asks them of the claimant and subsequently decides against him, the lawyers are fairly certain that an appellate court will remand the case to the hearing judge and order a new hearing. The lawyer then has a chance to try a more successful approach the second time. The lawyer-panelists, incidentally, said that any administrative law judge who decides a case without getting the opinion of a vocational expert is practically asking for a remand. “If I get to court,” began the kindly gentleman next to me, “and see that the judge will not be questioning a vocational expert, do I request that he do so?” Even lay readers can probably guess the correct answer: “Of course not.” Hence, while proceeding with the trial under these circumstances is probably a waste of time and taxpayers’ money, it provides the best of circumstances for the claimant’s lawyer: possible immediate, outright victory, but at least a guaranteed second chance in the event of a loss. Keep your mouth shut.
This is not the end of the moral gray area. The vocational expert mentioned a judge who had watched a claimant sit through a two-hour hearing. After the parties had left the courtroom, the judge remarked to the VE: “I can’t believe that guy. He claimed that he couldn’t sit comfortably for more than 12 minutes, yet he sat through a two-hour hearing and neither rose nor squirmed once.” This anecdote illustrated lesson number two: prepare your client for trial. One lawyer-panelist said that he and his client practice for the hearing (which usually runs well under two hours) on three separate occasions for two hours at a stretch. During these rehearsals, the client is instructed to interrupt the hearing every 30 minutes and ask the judge, “Excuse me, Your Honor. May I stand up for a few minutes?” After a proper interval, he is to again interrupt the proceedings to ask to sit down. The seminar audience emitted knowing chortles, and the lawyer did some backpedaling. The clients, he asserted, are “intimidated by the process” and will endure agony rather than risk court censure by requesting assistance or relief Therefore, insisting on such a script merely reinforces the claimant’s natural inclinations. And, if the hearing judge isn’t persuaded by the performance, the claimant’s requests are on the record and may tear at the appellate judge’s heartstrings later on.
Effective advocacy takes all forms. After lunch, another lawyer-panelist asked the VE to read the file on a client of his who was injured in an accident and was now seeking damages in a personal injury claim. The lawyer wanted to know what the man’s chances were for employment and whether he should call a VE to testify to the man’s now limited usefulness in the job market. The VE stated that the man’s refusal to accept rehabilitative services would be frowned upon by a jury. The lawyer then suggested he might put this VE on retainer so that the defense couldn’t call him to the stand to criticize his plaintiff’s attitude.
One lawyer-panelist told of a woman who was sent to a motel for training as a maid. She was given clear instructions on cleaning a room and was left by herself. Three hours later, her supervisor returned to the room the trainee was to have finished and found his new employee watching television in the dirty room. Lazy? Not on your life, said the lawyer. The woman suffered from an attention span deficiency and was entitled to Social Security Disability income.