Critical Elements of Effective Representation #3
Element 3: Strong Advocacy Before and During the
Hearing: Claimant and Expert Testimony
A third element of effective
representation is advocacy, which involves asserting a strong, solid theory of
disability. Effective advocacy involves many aspects, including the attorney's
ability to elicit favorable testimony from our client and his/her witnesses, to
interact with the Administrative Law Judge (ALJ) during the hearing, and the
ability to effectively cross-examine Medical and Vocational Experts. Of course,
effective advocacy starts with a solid knowledge of our client's medical
condition, as well as our theory of the case.
The attorney's interaction with the ALJ
is crucial. ALJ's have vastly different personalities and styles, and the
attorney must have the foresight and flexibility to adjust accordingly.
Flexibility in advocacy at the hearing may be as important as preparation
before the hearing.
Our attorneys appear in front of the
same judges on a regular basis. We generally know the specific legal standard
used by the judge in authorizing an award of disability benefits. It is our job
to effectively provide the necessary evidence and analysis to assist the judge
in making a favorable disability determination.
After sending the judge a pre-hearing
memorandum, setting forth our theory of disability (see Element 2: Preparation
for the Hearing), effective hearing advocacy first means eliciting favorable
testimony from our client, as well as his/her witnesses. Although ALJs may
focus primarily on the medical evidence in making their decisions, strong
witness testimony is not only important, but it can often fill in any gaps and
be the "deciding factor" in a case. An effective advocate knows how
to question both a client and his/her witnesses.
Critical advocacy includes attorney
cross-examination of Medical and Vocational Experts (MEs and VEs). Medical
Experts generally are doctors who have read the medical evidence in advance.
They provide their opinion to the ALJ as to 1) The severity of our client's
medical condition, and 2) what limitations (e.g. standing and/or walking, sitting,
reaching) are reasonably consistent with our client's medical condition.
Vocational Experts provide vocational
testimony to the ALJ about our client's work history, including the type of
work, duties, and skill requirements of Past Relevant Work. A VE will also
provide opinion evidence as to alternative jobs which he/she believes that our
client can perform in the local, regional, and national economy .
Effective advocacy requires attorney
cross-examination of hearing experts to help clarify issues and establish
medical and vocational facts. Ultimately, effective cross-examination is
intended to influence the ALJ to make a favorable disability finding for our
clients.
Eric J. Patrick, Esq. & Richard A. Gutstadt, Esq.
No comments:
Post a Comment